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The term provision is used to describe a definable element in a piece of legislation that has legislative effect – such as a Part, Chapter or section. A version of a provision is prospective either:

where the provision (Part, Chapter or section) has never come into force or;

where the text of the provision is subject to change, but no date has yet been appointed by the appropriate person or body for those changes to come into force.

Commencement Orders listed in the ‘Changes to Legislation’ box as not yet applied may bring this prospective version into force.

Changes to legislation:

There are outstanding changes not yet made by the legislation.gov.uk editorial team to Family Law Act 1996. Any changes that have already been made by the team appear in the content and are referenced with annotations.

Changes to Legislation

Revised legislation carried on this site may not be fully up to date. Changes and effects are recorded by our editorial team in lists which can be found in the ‘Changes to Legislation’ area. Where those effects have yet to be applied to the text of the legislation by the editorial team they are also listed alongside the legislation in the affected provisions. Use the ‘more’ link to open the changes and effects relevant to the provision you are viewing.

E+W

Family Law Act 1996

1996 CHAPTER 27

An Act to make provision with respect to: divorce and separation; legal aid in connection with mediation in disputes relating to family matters; proceedings in cases where marriages have broken down; rights of occupation of certain domestic premises; prevention of molestation; the inclusion in certain orders under the Children Act 1989 of provisions about the occupation of a dwelling-house; the transfer of tenancies between spouses and persons who have lived together as husband and wife; and for connected purposes.

[4th July 1996]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Part IE+W Principles of Parts II and III

1 The general principles underlying Parts II and III.E+W

The court and any person, in exercising functions under or in consequence of Parts II and III, shall have regard to the following general principles—

(a)that the institution of marriage is to be supported;

(b)that the parties to a marriage which may have broken down are to be encouraged to take all practicable steps, whether by marriage counselling or otherwise, to save the marriage;

(c)that a marriage which has irretrievably broken down and is being brought to an end should be brought to an end—

(i)with minimum distress to the parties and to the children affected;

(ii)with questions dealt with in a manner designed to promote as good a continuing relationship between the parties and any children affected as is possible in the circumstances; and

(iii)without costs being unreasonably incurred in connection with the procedures to be followed in bringing the marriage to an end; and

(d)that any risk to one of the parties to a marriage, and to any children, of violence from the other party should, so far as reasonably practicable, be removed or diminished.

Part IIE+W+S+N.I. Divorce and Separation

Prospective

Court ordersE+W

2 Divorce and separation.E+W

(1)The court may—

(a)by making an order (to be known as a divorce order), dissolve a marriage; or

(b)by making an order (to be known as a separation order), provide for the separation of the parties to a marriage.

(2)Any such order comes into force on being made.

(3)A separation order remains in force—

(a)while the marriage continues; or

(b)until cancelled by the court on the joint application of the parties.

3 Circumstances in which orders are made.E+W

(1)If an application for a divorce order or for a separation order is made to the court under this section by one or both of the parties to a marriage, the court shall make the order applied for if (but only if)—

(a)the marriage has broken down irretrievably;

(b)the requirements of section 8 about information meetings are satisfied;

(c)the requirements of section 9 about the parties’ arrangements for the future are satisfied; and

(d)the application has not been withdrawn.

(2)A divorce order may not be made if an order preventing divorce is in force under section 10.

(3)If the court is considering an application for a divorce order and an application for a separation order in respect of the same marriage it shall proceed as if it were considering only the application for a divorce order unless—

(a)an order preventing divorce is in force with respect to the marriage;

(b)the court makes an order preventing divorce; or

(c)section 7(6) or (13) applies.

4 Conversion of separation order into divorce order.E+W

(1)A separation order which is made before the second anniversary of the marriage may not be converted into a divorce order under this section until after that anniversary.

(2)A separation order may not be converted into a divorce order under this section at any time while—

(a)an order preventing divorce is in force under section 10; or

(b)subsection (4) applies.

(3)Otherwise, if a separation order is in force and an application for a divorce order—

(a)is made under this section by either or both of the parties to the marriage, and

(b)is not withdrawn,

the court shall grant the application once the requirements of section 11 have been satisfied.

(4)Subject to subsection (5), this subsection applies if—

(a)there is a child of the family who is under the age of sixteen when the application under this section is made; or

(b)the application under this section is made by one party and the other party applies to the court, before the end of such period as may be prescribed by rules of court, for time for further reflection.

(5)Subsection (4)—

(a)does not apply if, at the time when the application under this section is made, there is an occupation order or a non-molestation order in force in favour of the applicant, or of a child of the family, made against the other party;

(b)does not apply if the court is satisfied that delaying the making of a divorce order would be significantly detrimental to the welfare of any child of the family;

(c)ceases to apply—

(i)at the end of the period of six months beginning with the end of the period for reflection and consideration by reference to which the separation order was made; or

(ii)if earlier, on there ceasing to be any children of the family to whom subsection (4)(a) applied.

Prospective

Marital breakdownE+W

5 Marital breakdown.E+W

(1)A marriage is to be taken to have broken down irretrievably if (but only if)—

(a)a statement has been made by one (or both) of the parties that the maker of the statement (or each of them) believes that the marriage has broken down;

(b)the statement complies with the requirements of section 6;

(c)the period for reflection and consideration fixed by section 7 has ended; and

(d)the application under section 3 is accompanied by a declaration by the party making the application that—

(i)having reflected on the breakdown, and

(ii)having considered the requirements of this Part as to the parties’ arrangements for the future,

the applicant believes that the marriage cannot be saved.

(2)The statement and the application under section 3 do not have to be made by the same party.

(3)An application may not be made under section 3 by reference to a particular statement if—

(a)the parties have jointly given notice (in accordance with rules of court) withdrawing the statement; or

(b)a period of one year ( “the specified period”) has passed since the end of the period for reflection and consideration.

(4)Any period during which an order preventing divorce is in force is not to count towards the specified period mentioned in subsection (3)(b).

(5)Subsection (6) applies if, before the end of the specified period, the parties jointly give notice to the court that they are attempting reconciliation but require additional time.

(6)The specified period—

(a)stops running on the day on which the notice is received by the court; but

(b)resumes running on the day on which either of the parties gives notice to the court that the attempted reconciliation has been unsuccessful.

(7)If the specified period is interrupted by a continuous period of more than 18 months, any application by either of the parties for a divorce order or for a separation order must be by reference to a new statement received by the court at any time after the end of the 18 months.

(8)The Lord Chancellor may by order amend subsection (3)(b) by varying the specified period.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

6 Statement of marital breakdown.E+W

(1)A statement under section 5(1)(a) is to be known as a statement of marital breakdown; but in this Part it is generally referred to as “a statement”.

(2)If a statement is made by one party it must also state that that party—

(a)is aware of the purpose of the period for reflection and consideration as described in section 7; and

(b)wishes to make arrangements for the future.

(3)If a statement is made by both parties it must also state that each of them—

(a)is aware of the purpose of the period for reflection and consideration as described in section 7; and

(b)wishes to make arrangements for the future.

(4)A statement must be given to the court in accordance with the requirements of rules made under section 12.

(5)A statement must also satisfy any other requirements imposed by rules made under that section.

(6)A statement made at a time when the circumstances of the case include any of those mentioned in subsection (7) is ineffective for the purposes of this Part.

(7)The circumstances are—

(a)that a statement has previously been made with respect to the marriage and it is, or will become, possible—

(i)for an application for a divorce order, or

(ii)for an application for a separation order,

to be made by reference to the previous statement;

(b)that such an application has been made in relation to the marriage and has not been withdrawn;

(c)that a separation order is in force.

Prospective

Reflection and considerationE+W

7 Period for reflection and consideration.E+W

(1)Where a statement has been made, a period for the parties—

(a)to reflect on whether the marriage can be saved and to have an opportunity to effect a reconciliation, and

(b)to consider what arrangements should be made for the future,

must pass before an application for a divorce order or for a separation order may be made by reference to that statement.

(2)That period is to be known as the period for reflection and consideration.

(3)The period for reflection and consideration is nine months beginning with the fourteenth day after the day on which the statement is received by the court.

(4)Where—

(a)the statement has been made by one party,

(b)rules made under section 12 require the court to serve a copy of the statement on the other party, and

(c)failure to comply with the rules causes inordinate delay in service,

the court may, on the application of that other party, extend the period for reflection and consideration.

(5)An extension under subsection (4) may be for any period not exceeding the time between—

(a)the beginning of the period for reflection and consideration; and

(b)the time when service is effected.

(6)A statement which is made before the first anniversary of the marriage to which it relates is ineffective for the purposes of any application for a divorce order.

(7)Subsection (8) applies if, at any time during the period for reflection and consideration, the parties jointly give notice to the court that they are attempting a reconciliation but require additional time.

(8)The period for reflection and consideration—

(a)stops running on the day on which the notice is received by the court; but

(b)resumes running on the day on which either of the parties gives notice to the court that the attempted reconciliation has been unsuccessful.

(9)If the period for reflection and consideration is interrupted under subsection (8) by a continuous period of more than 18 months, any application by either of the parties for a divorce order or for a separation order must be by reference to a new statement received by the court at any time after the end of the 18 months.

(10)Where an application for a divorce order is made by one party, subsection (13) applies if—

(a)the other party applies to the court, within the prescribed period, for time for further reflection; and

(b)the requirements of section 9 (except any imposed under section 9(3)) are satisfied.

(11)Where any application for a divorce order is made, subsection (13) also applies if there is a child of the family who is under the age of sixteen when the application is made.

(12)Subsection (13) does not apply if—

(a)at the time when the application for a divorce order is made, there is an occupation order or a non-molestation order in force in favour of the applicant, or of a child of the family, made against the other party; or

(b)the court is satisfied that delaying the making of a divorce order would be significantly detrimental to the welfare of any child of the family.

(13)If this subsection applies, the period for reflection and consideration is extended by a period of six months, but—

(a)only in relation to the application for a divorce order in respect of which the application under subsection (10) was made; and

(b)without invalidating that application for a divorce order.

(14)A period for reflection and consideration which is extended under subsection (13), and which has not otherwise come to an end, comes to an end on there ceasing to be any children of the family to whom subsection (11) applied.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

8 Attendance at information meetings.E+W

(2)A party making a statement must (except in prescribed circumstances) have attended an information meeting not less than three months before making the statement.

(3)Different information meetings must be arranged with respect to different marriages.

(4)In the case of a statement made by both parties, the parties may attend separate meetings or the same meeting.

(5)Where one party has made a statement, the other party must (except in prescribed circumstances) attend an information meeting before—

(a)making any application to the court—

(i)with respect to a child of the family; or

(ii)of a prescribed description relating to property or financial matters; or

(b)contesting any such application.

(6)In this section “information meeting” means a meeting organised, in accordance with prescribed provisions for the purpose—

(a)of providing, in accordance with prescribed provisions, relevant information to the party or parties attending about matters which may arise in connection with the provisions of, or made under, this Part or Part III; and

(b)of giving the party or parties attending the information meeting the opportunity of having a meeting with a marriage counsellor and of encouraging that party or those parties to attend that meeting.

(7)An information meeting must be conducted by a person who—

(a)is qualified and appointed in accordance with prescribed provisions; and

(b)will have no financial or other interest in any marital proceedings between the parties.

(8)Regulations made under this section may, in particular, make provision—

(a)about the places and times at which information meetings are to be held;

(b)for written information to be given to persons attending them;

(c)for the giving of information to parties (otherwise than at information meetings) in cases in which the requirement to attend such meetings does not apply;

(d)for information of a prescribed kind to be given only with the approval of the Lord Chancellor or only by a person or by persons approved by him; and

(e)for information to be given, in prescribed circumstances, only with the approval of the Lord Chancellor or only by a person, or by persons, approved by him.

(9)Regulations made under subsection (6) must, in particular, make provision with respect to the giving of information about—

(a)marriage counselling and other marriage support services;

(b)the importance to be attached to the welfare, wishes and feelings of children;

(c)how the parties may acquire a better understanding of the ways in which children can be helped to cope with the breakdown of a marriage;

(d)the nature of the financial questions that may arise on divorce or separation, and services which are available to help the parties;

(e)protection available against violence, and how to obtain support and assistance;

(f)mediation;

(g)the availability to each of the parties of independent legal advice and representation;

[F1(h)the availability of services funded by the Legal Services Commission as part of the Community Legal Service, and where parties can get advice about obtaining such services;]

(i)the divorce and separation process.

(10)Before making any regulations under subsection (6), the Lord Chancellor must consult such persons concerned with the provision of relevant information as he considers appropriate.

(11)A meeting with a marriage counsellor arranged under this section—

(a)must be held in accordance with prescribed provisions; and

(b)must be with a person qualified and appointed in accordance with prescribed provisions.

(12)A person who would not be required to make any contribution towards mediation [F2funded for him by the Legal Services Commission as part of the Community Legal Service] shall not be required to make any contribution towards the cost of a meeting with a marriage counsellor arranged for him under this section.

(13)In this section “prescribed” means prescribed by regulations made by the Lord Chancellor.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Orders preventing divorceE+W

10 Hardship: orders preventing divorce.E+W

(1)If an application for a divorce order has been made by one of the parties to a marriage, the court may, on the application of the other party, order that the marriage is not to be dissolved.

(2)Such an order (an “order preventing divorce”) may be made only if the court is satisfied—

(a)that dissolution of the marriage would result in substantial financial or other hardship to the other party or to a child of the family; and

(b)that it would be wrong, in all the circumstances (including the conduct of the parties and the interests of any child of the family), for the marriage to be dissolved.

(3)If an application for the cancellation of an order preventing divorce is made by one or both of the parties, the court shall cancel the order unless it is still satisfied—

(a)that dissolution of the marriage would result in substantial financial or other hardship to the party in whose favour the order was made or to a child of the family; and

(b)that it would be wrong, in all the circumstances (including the conduct of the parties and the interests of any child of the family), for the marriage to be dissolved.

(4)If an order preventing a divorce is cancelled, the court may make a divorce order in respect of the marriage only if an application is made under section 3 or 4(3) after the cancellation.

(5)An order preventing divorce may include conditions which must be satisfied before an application for cancellation may be made under subsection (3).

(6)In this section “hardship” includes the loss of a chance to obtain a future benefit (as well as the loss of an existing benefit).

Prospective

Welfare of childrenE+W

11 Welfare of children.E+W

(1)In any proceedings for a divorce order or a separation order, the court shall consider—

(a)whether there are any children of the family to whom this section applies; and

(b)where there are any such children, whether (in the light of the arrangements which have been, or are proposed to be, made for their upbringing and welfare) it should exercise any of its powers under the M1Children Act 1989 with respect to any of them.

(2)Where, in any case to which this section applies, it appears to the court that—

(a)the circumstances of the case require it, or are likely to require it, to exercise any of its powers under the Children Act 1989 with respect to any such child,

(b)it is not in a position to exercise the power, or (as the case may be) those powers, without giving further consideration to the case, and

(c)there are exceptional circumstances which make it desirable in the interests of the child that the court should give a direction under this section,

it may direct that the divorce order or separation order is not to be made until the court orders otherwise.

(3)In deciding whether the circumstances are as mentioned in subsection (2)(a), the court shall treat the welfare of the child as paramount.

(4)In making that decision, the court shall also have particular regard, on the evidence before it, to—

(a)the wishes and feelings of the child considered in the light of his age and understanding and the circumstances in which those wishes were expressed;

(b)the conduct of the parties in relation to the upbringing of the child;

(c)the general principle that, in the absence of evidence to the contrary, the welfare of the child will be best served by—

(i)his having regular contact with those who have parental responsibility for him and with other members of his family; and

(ii)the maintenance of as good a continuing relationship with his parents as is possible; and

(d)any risk to the child attributable to—

(i)where the person with whom the child will reside is living or proposes to live;

(ii)any person with whom that person is living or with whom he proposes to live; or

(iii)any other arrangements for his care and upbringing.

(5)This section applies to—

(a)any child of the family who has not reached the age of sixteen at the date when the court considers the case in accordance with the requirements of this section; and

(b)any child of the family who has reached that age at that date and in relation to whom the court directs that this section shall apply.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

SupplementaryE+W

(1)[F6Rules may be made in accordance with Part 1 of Schedule 1 to the Constitutional Reform Act 2005]—

(a)as to the form in which a statement is to be made and what information must accompany it;

(b)requiring the person making the statement to state whether or not, since satisfying the requirements of section 8, he has made any attempt at reconciliation;

(c)as to the way in which a statement is to be given to the court;

(d)requiring a copy of a statement made by one party to be served by the court on the other party;

(e)as to circumstances in which such service may be dispensed with or may be effected otherwise than by delivery to the party;

(f)requiring a party who has made a statement to provide the court with information about the arrangements that need to be made in consequence of the breakdown;

(g)as to the time, manner and (where attendance in person is required) place at which such information is to be given;

(h)where a statement has been made, requiring either or both of the parties—

(i)to prepare and produce such other documents, and

(ii)to attend in person at such places and for such purposes,

as may be specified;

(i)as to the information and assistance which is to be given to the parties and the way in which it is to be given;

(j)requiring the parties to be given, in such manner as may be specified, copies of such statements and other documents as may be specified.

(2)[F7Rules may be made in accordance with Part 1 of Schedule 1 to the Constitutional Reform Act 2005] requiring a person who is the legal representative of a party to a marriage with respect to which a statement has been, or is proposed to be, made—

(a)to inform that party, at such time or times as may be specified—

(i)about the availability to the parties of marriage support services;

(ii)about the availability to them of mediation; and

(iii)where there are children of the family, that in relation to the arrangements to be made for any child the parties should consider the child’s welfare, wishes and feelings;

(b)to give that party, at such time or times as may be specified, names and addresses of persons qualified to help—

(i)to effect a reconciliation; or

(ii)in connection with mediation; and

(c)to certify, at such time or times as may be specified—

(i)whether he has complied with the provision made in the rules by virtue of paragraphs (a) and (b);

(ii)whether he has discussed with that party any of the matters mentioned in paragraph (a) or the possibility of reconciliation; and

(iii)which, if any, of those matters they have discussed.

(3)In subsections (1) and (2) “specified” means determined under or described in the rules.

(4)This section does not affect any power to make rules of court for the purposes of this Act.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

18 Grounds for financial provision orders in magistrates’ courts.E+W

(1)In section 1 of the M2Domestic Proceedings and Magistrates’ Courts Act 1978, omit paragraphs (c) and (d) (which provide for behaviour and desertion to be grounds on which an application for a financial provision order may be made).

(2)In section 7(1) of that Act (powers of magistrates’ court where spouses are living apart by agreement), omit “neither party having deserted the other”.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Jurisdiction and commencement of proceedingsE+W

19 Jurisdiction in relation to divorce and separation.E+W

(a)the jurisdiction of the court under this Part to entertain marital proceedings; and

(b)any other jurisdiction conferred on the court under this Part, or any other enactment, in consequence of the making of a statement.

(2)The court’s jurisdiction is exercisable only if—

(a)at least one of the parties was domiciled in England and Wales on the statement date;

(b)at least one of the parties was habitually resident in England and Wales throughout the period of one year ending with the statement date; or

(c)nullity proceedings are pending in relation to the marriage when the marital proceedings commence.

(3)Subsection (4) applies if—

(a)a separation order is in force; or

(b)an order preventing divorce has been cancelled.

(4)The court—

(a)continues to have jurisdiction to entertain an application made by reference to the order referred to in subsection (3); and

(b)may exercise any other jurisdiction which is conferred on it in consequence of such an application.

(5)Schedule 3 amends Schedule 1 to the M3Domicile and Matrimonial Proceedings Act 1973 (orders to stay proceedings where there are proceedings in other jurisdictions).

(6)The court’s jurisdiction is exercisable subject to any order for a stay under Schedule 1 to that Act.

(7)In this section—

“nullity proceedings” means proceedings in respect of which the court has jurisdiction under section 5(3) of the Domicile and Matrimonial Proceedings Act 1973; and

“statement date” means the date on which the relevant statement was received by the court.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

20 Time when proceedings for divorce or separation begin.E+W

(1)The receipt by the court of a statement is to be treated as the commencement of proceedings.

(2)The proceedings are to be known as marital proceedings.

(3)Marital proceedings are also—

(a)separation proceedings, if an application for a separation order has been made under section 3 by reference to the statement and not withdrawn;

(b)divorce proceedings, if an application for a divorce order has been made under section 3 by reference to the statement and not withdrawn.

(4)Marital proceedings are to be treated as being both divorce proceedings and separation proceedings at any time when no application by reference to the statement, either for a divorce order or for a separation order, is outstanding.

(5)Proceedings which are commenced by the making of an application under section 4(3) are also marital proceedings and divorce proceedings.

(6)Marital proceedings come to an end—

(a)on the making of a separation order;

(b)on the making of a divorce order;

(c)on the withdrawal of the statement by a notice in accordance with section 5(3)(a);

(d)at the end of the specified period mentioned in section 5(3)(b), if no application under section 3 by reference to the statement is outstanding;

(e)on the withdrawal of all such applications which are outstanding at the end of that period;

(f)on the withdrawal of an application under section 4(3).

Prospective

IntestacyE+W

21 Intestacy: effect of separation.E+W

Where—

(a)a separation order is in force, and

(b)while the parties to the marriage remain separated, one of them dies intestate as respects any real or personal property,

that property devolves as if the other had died before the intestacy occurred.

Marriage support servicesE+W

22 Funding for marriage support services.E+W

(1)The [F10Secretary of State] may, with the approval of the Treasury, make grants in connection with—

(a)the provision of marriage support services;

(b)research into the causes of marital breakdown;

(c)research into ways of preventing marital breakdown.

(2)Any grant under this section may be made subject to such conditions as the [F10Secretary of State] considers appropriate.

(3)In exercising his power to make grants in connection with the provision of marriage support services, the [F10Secretary of State] is to have regard, in particular, to the desirability of services of that kind being available when they are first needed.

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23 Provision of marriage counselling.E+W

(1)The Lord Chancellor or a person appointed by him may secure the provision, in accordance with regulations made by the Lord Chancellor, of marriage counselling.

(2)Marriage counselling may only be provided under this section at a time when a period for reflection and consideration—

(a)is running in relation to the marriage; or

(b)is interrupted under section 7(8) (but not for a continuous period of more than 18 months).

(3)Marriage counselling may only be provided under this section for persons who would not be required to make any contribution towards the cost of mediation [F11funded for them by the Legal Services Commission as part of the Community Legal Service].

(4)Persons for whom marriage counselling is provided under this section are not to be required to make any contribution towards the cost of the counselling.

(5)Marriage counselling is only to be provided under this section if it appears to the marriage counsellor to be suitable in all the circumstances.

(6)Regulations under subsection (1) may—

(a)make provision about the way in which marriage counselling is to be provided; and

(b)prescribe circumstances in which the provision of marriage counselling is to be subject to the approval of the Lord Chancellor.

(7)A contract entered into for the purposes of subsection (1) by a person appointed under that subsection must include such provision as the Lord Chancellor may direct.

(8)If the person appointed under subsection (1) is the [F12the Legal Services Commission], the powers conferred on [F13the Commission] by or under the [F14Part I of the Access to Justice Act 1999] shall be exercisable for the purposes of this section as they are exercisable for the purposes [F15that Part of] of that Act.

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

InterpretationE+W

24 Interpretation of Part II etc.E+W

“child of the family” and “the court” have the same meaning as in the 1973 Act;

“divorce order” has the meaning given in section 2(1)(a);

“divorce proceedings” is to be read with section 20;

“marital proceedings” has the meaning given in section 20;

“non-molestation order” has the meaning given by section 42(1);

“occupation order” has the meaning given by section 39;

“order preventing divorce” has the meaning given in section 10(2);

“party”, in relation to a marriage, means one of the parties to the marriage;

“period for reflection and consideration” has the meaning given in section 7;

“separation order” has the meaning given in section 2(1)(b);

“separation proceedings” is to be read with section 20;

“statement” means a statement of marital breakdown;

“statement of marital breakdown” has the meaning given in section 6(1).

(2)For the purposes of this Part, references to the withdrawal of an application are references, in relation to an application made jointly by both parties, to its withdrawal by a notice given, in accordance with rules of court—

(a)jointly by both parties; or

(b)separately by each of them.

(3)Where only one party gives such a notice of withdrawal, in relation to a joint application, the application shall be treated as if it had been made by the other party alone.

Annotations:

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25 Connected proceedings.E+W

(1)For the purposes of this Part, proceedings are connected with the breakdown of a marriage if they fall within subsection (2) and, at the time of the proceedings—

(a)a statement has been received by the court with respect to the marriage and it is or may become possible for an application for a divorce order or separation order to be made by reference to that statement;

(b)such an application in relation to the marriage has been made and not withdrawn; or

(c)a divorce order has been made, or a separation order is in force, in relation to the marriage.

(2)The proceedings are any under Parts I to V of the M5Children Act 1989 with respect to a child of the family or any proceedings resulting from an application—

(a)for, or for the cancellation of, an order preventing divorce in relation to the marriage;

(b)by either party to the marriage for an order under Part IV;

(c)for the exercise, in relation to a party to the marriage or child of the family, of any of the court’s powers under Part II of the 1973 Act;

(d)made otherwise to the court with respect to, or in connection with, any proceedings connected with the breakdown of the marriage.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

26. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

27. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

28. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

29. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part IVE+W Family Homes and Domestic Violence

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

(2)Subject to the provisions of this Part, [F23B] has the following rights ([F24home rights”])—

(a)if in occupation, a right not to be evicted or excluded from the dwelling-house or any part of it by [F25A] except with the leave of the court given by an order under section 33;

(b)if not in occupation, a right with the leave of the court so given to enter into and occupy the dwelling-house.

(3)If [F26B] is entitled under this section to occupy a dwelling-house or any part of a dwelling-house, any payment or tender made or other thing done by [F26B] in or towards satisfaction of any liability of [F27A] in respect of rent, mortgage payments or other outgoings affecting the dwelling-house is, whether or not it is made or done in pursuance of an order under section 40, as good as if made or done by [F27A].

(a)is to be treated, for the purposes of the M11Rent (Agriculture) Act 1976 and the M12Rent Act 1977 (other than Part V and sections 103 to 106 of that Act), as occupation [F29by A as A's] residence, and

(b)if [F30B occupies the dwelling-house as B's] only or principal home, is to be treated, for the purposes of the M13Housing Act 1985 [F31, Part I of the Housing Act 1988 and Chapter I of Part V of the Housing Act 1996], as occupation [F32by A as A's] only or principal home.

(a)is entitled under this section to occupy a dwelling-house or any part of a dwelling-house, and

(b)makes any payment in or towards satisfaction of any liability of [F34A] in respect of mortgage payments affecting the dwelling-house,

the person to whom the payment is made may treat it as having been made by [F35A], but the fact that that person has treated any such payment as having been so made does not affect any claim of [F36B against A] to an interest in the dwelling-house by virtue of the payment.

(6)If [F37B] is entitled under this section to occupy a dwelling-house or part of a dwelling-house by reason of an interest of [F38A] under a trust, all the provisions of subsections (3) to (5) apply in relation to the trustees as they apply in relation to [F38A].

(a)only so long as the marriage [F41or civil partnership] subsists, except to the extent that an order under section 33(5) otherwise provides; and

(b)only so long as [F42A] is entitled as mentioned in subsection (1) to occupy the dwelling-house, except where provision is made by section 31 for those rights to be a charge on an estate or interest in the dwelling-house.

(a)who has an equitable interest in a dwelling-house or in its proceeds of sale, but

(b)is not [F43a person] in whom there is vested (whether solely or as joint tenant) a legal estate in fee simple or a legal term of years absolute in the dwelling-house,

is to be treated, only for the purpose of determining whether he has [F44home rights], as not being entitled to occupy the dwelling-house by virtue of that interest.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

(b)the date of the marriage [F49or of the formation of the civil partnership]; and

(c)1st January 1968 (the commencement date of the M14Matrimonial Homes Act 1967).

(4)Subsections (5) and (6) apply if, at any time when [F50B’s home rights] are a charge on an interest of [F51A] under a trust, there are, apart from [F52A or B], no persons, living or unborn, who are or could become beneficiaries under the trust.

(5)The rights are a charge also on the estate or interest of the trustees for [F53A].

(6)The charge created by subsection (5) has the same priority as if it were an equitable interest created (under powers overriding the trusts) on the date when it arises.

(7)In determining for the purposes of subsection (4) whether there are any persons who are not, but could become, beneficiaries under the trust, there is to be disregarded any potential exercise of a general power of appointment exercisable by either or both of [F54A and B] alone (whether or not the exercise of it requires the consent of another person).

(8)Even though [F55B’s home rights] are a charge on an estate or interest in the dwelling-house, those rights are brought to an end by—

(b)the termination (otherwise than by death) of the marriage [F57or civil partnership],

unless the court directs otherwise by an order made under section 33(5).

(9)If—

(a)[F58B’s home rights] are a charge on an estate or interest in the dwelling-house, and

(b)that estate or interest is surrendered to merge in some other estate or interest expectant on it in such circumstances that, but for the merger, the person taking the estate or interest would be bound by the charge,

the surrender has effect subject to the charge and the persons thereafter entitled to the other estate or interest are, for so long as the estate or interest surrendered would have endured if not so surrendered, to be treated for all purposes of this Part as deriving title to the other estate or interest under [F59A] or, as the case may be, under the trustees for [F59A], by virtue of the surrender.

(10)If the title to the legal estate by virtue of which [F60A] is entitled to occupy a dwelling-house (including any legal estate held by trustees for [F60A]) is registered under the [F61Land Registration Act 2002] or any enactment replaced by that Act—

(a)registration of a land charge affecting the dwelling-house by virtue of this Part is to be effected by registering a notice under that Act; and

[F62(b)[F63B’s home rights] are not to be capable of falling within paragraph 2 of Schedule 1 or 3 to that Act.]

[F65(a)B’s home rights are a charge on the estate of A or of trustees of A, and]

(b)that estate is the subject of a mortgage,

then if, after the date of the creation of the mortgage ( “the first mortgage”), the charge is registered under section 2 of the M15Land Charges Act 1972, the charge is, for the purposes of section 94 of the M16Law of Property Act 1925 (which regulates the rights of mortgagees to make further advances ranking in priority to subsequent mortgages), to be deemed to be a mortgage subsequent in date to the first mortgage.

(13)It is hereby declared that a charge under subsection (2) or (5) is not registrable under subsection (10) or under section 2 of the Land Charges Act 1972 unless it is a charge on a legal estate.

Annotations:

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

(i)is or at any time has been the home of the person entitled and of another person with whom he is associated, or

(ii)was at any time intended by the person entitled and any such other person to be their home,

the person entitled may apply to the court for an order containing any of the provisions specified in subsections (3), (4) and (5).

(2)If an agreement to marry is terminated, no application under this section may be made by virtue of section 62(3)(e) by reference to that agreement after the end of the period of three years beginning with the day on which it is terminated.

[F69(2A)If a civil partnership agreement (as defined by section 73 of the Civil Partnership Act 2004) is terminated, no application under this section may be made by virtue of section 62(3)(eza) by reference to that agreement after the end of the period of three years beginning with the day on which it is terminated.]

(3)An order under this section may—

(a)enforce the applicant’s entitlement to remain in occupation as against the other person ( “the respondent”);

(b)require the respondent to permit the applicant to enter and remain in the dwelling-house or part of the dwelling-house;

(c)regulate the occupation of the dwelling-house by either or both parties;

(d)if the respondent is entitled as mentioned in subsection (1)(a)(i), prohibit, suspend or restrict the exercise by him of his right to occupy the dwelling-house;

(e)if the respondent has [F70home rights] in relation to the dwelling-house and the applicant is the other spouse [F71or civil partner], restrict or terminate those rights;

(f)require the respondent to leave the dwelling-house or part of the dwelling-house; or

(g)exclude the respondent from a defined area in which the dwelling-house is included.

(4)An order under this section may declare that the applicant is entitled as mentioned in subsection (1)(a)(i) or has [F72home rights].

(5)If the applicant has [F73home rights] and the respondent is the other spouse [F74or civil partner], an order under this section made during the marriage [F75or civil partnership] may provide that those rights are not brought to an end by—

(b)the termination (otherwise than by death) of the marriage [F77or civil partnership].

(6)In deciding whether to exercise its powers under subsection (3) and (if so) in what manner, the court shall have regard to all the circumstances including—

(a)the housing needs and housing resources of each of the parties and of any relevant child;

(b)the financial resources of each of the parties;

(c)the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3), on the health, safety or well-being of the parties and of any relevant child; and

(d)the conduct of the parties in relation to each other and otherwise.

(7)If it appears to the court that the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent if an order under this section containing one or more of the provisions mentioned in subsection (3) is not made, the court shall make the order unless it appears to it that—

(a)the respondent or any relevant child is likely to suffer significant harm if the order is made; and

(b)the harm likely to be suffered by the respondent or child in that event is as great as, or greater than, the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the order is not made.

(8)The court may exercise its powers under subsection (5) in any case where it considers that in all the circumstances it is just and reasonable to do so.

(9)An order under this section—

(a)may not be made after the death of either of the parties mentioned in subsection (1); and

(b)except in the case of an order made by virtue of subsection (5)(a), ceases to have effect on the death of either party.

(10)An order under this section may, in so far as it has continuing effect, be made for a specified period, until the occurrence of a specified event or until further order.

Annotations:

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34 Effect of order under s. 33 where rights are charge on dwelling-house.E+W

(1)If [F78B’s home rights] are a charge on the estate or interest of [F79A] or of trustees for [F79A]—

(a)an order under section 33 against [F79A] has, except so far as a contrary intention appears, the same effect against persons deriving title under [F79A] or under the trustees and affected by the charge, and

(b)sections 33(1), (3), (4) and (10) and 30(3) to (6) apply in relation to any person deriving title under [F79A] or under the trustees and affected by the charge as they apply in relation to [F79A].

(2)The court may make an order under section 33 by virtue of subsection (1)(b) if it considers that in all the circumstances it is just and reasonable to do so.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

35 One former spouse [F80or former civil partner] with no existing right to occupy.E+W

(1)This section applies if—

(a)one former spouse [F81or former civil partner] is entitled to occupy a dwelling-house by virtue of a beneficial estate or interest or contract, or by virtue of any enactment giving him the right to remain in occupation;

(b)the other former spouse [F82or former civil partner] is not so entitled; and

(i)in the case of former spouses, was at any time their matrimonial home or was at any time intended by them to be their matrimonial home, or

(ii)in the case of former civil partners, was at any time their civil partnership home or was at any time intended by them to be their civil partnership home.]

(2)The former spouse [F84or former civil partner] not so entitled may apply to the court for an order under this section against the other former spouse [F84or former civil partner]( “the respondent”).

(3)If the applicant is in occupation, an order under this section must contain provision—

(a)giving the applicant the right not to be evicted or excluded from the dwelling-house or any part of it by the respondent for the period specified in the order; and

(b)prohibiting the respondent from evicting or excluding the applicant during that period.

(4)If the applicant is not in occupation, an order under this section must contain provision—

(a)giving the applicant the right to enter into and occupy the dwelling-house for the period specified in the order; and

(b)requiring the respondent to permit the exercise of that right.

(5)An order under this section may also—

(a)regulate the occupation of the dwelling-house by either or both of the parties;

(b)prohibit, suspend or restrict the exercise by the respondent of his right to occupy the dwelling-house;

(c)require the respondent to leave the dwelling-house or part of the dwelling-house; or

(d)exclude the respondent from a defined area in which the dwelling-house is included.

(6)In deciding whether to make an order under this section containing provision of the kind mentioned in subsection (3) or (4) and (if so) in what manner, the court shall have regard to all the circumstances including—

(a)the housing needs and housing resources of each of the parties and of any relevant child;

(b)the financial resources of each of the parties;

(c)the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3) or (4), on the health, safety or well-being of the parties and of any relevant child;

(d)the conduct of the parties in relation to each other and otherwise;

(e)the length of time that has elapsed since the parties ceased to live together;

(f)the length of time that has elapsed since the marriage [F85or civil partnership] was dissolved or annulled; and

(g)the existence of any pending proceedings between the parties—

(i)for an order under section 23A or 24 of the M17Matrimonial Causes Act 1973 (property adjustment orders in connection with divorce proceedings etc.);

[F86(ia)for a property adjustment order under Part 2 of Schedule 5 to the Civil Partnership Act 2004;]

(ii)for an order under paragraph 1(2)(d) or (e) of Schedule 1 to the M18Children Act 1989 (orders for financial relief against parents); or

(iii)relating to the legal or beneficial ownership of the dwelling-house.

(7)In deciding whether to exercise its power to include one or more of the provisions referred to in subsection (5) ( “a subsection (5) provision”) and (if so) in what manner, the court shall have regard to all the circumstances including the matters mentioned in subsection (6)(a) to (e).

(8)If the court decides to make an order under this section and it appears to it that, if the order does not include a subsection (5) provision, the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent, the court shall include the subsection (5) provision in the order unless it appears to the court that—

(a)the respondent or any relevant child is likely to suffer significant harm if the provision is included in the order; and

(b)the harm likely to be suffered by the respondent or child in that event is as great as or greater than the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the provision is not included.

(9)An order under this section—

(a)may not be made after the death of either of the former spouses [F87or former civil partners]; and

(b)ceases to have effect on the death of either of them.

(10)An order under this section must be limited so as to have effect for a specified period not exceeding six months, but may be extended on one or more occasions for a further specified period not exceeding six months.

(11)A former spouse [F88or former civil partner] who has an equitable interest in the dwelling-house or in the proceeds of sale of the dwelling-house but in whom there is not vested (whether solely or as joint tenant) a legal estate in fee simple or a legal term of years absolute in the dwelling-house is to be treated (but only for the purpose of determining whether he is eligible to apply under this section) as not being entitled to occupy the dwelling-house by virtue of that interest.

(12)Subsection (11) does not prejudice any right of such a former spouse [F89or former civil partner] to apply for an order under section 33.

(13)So long as an order under this section remains in force, subsections (3) to (6) of section 30 apply in relation to the applicant—

[F90(a)as if he were B (the person entitled to occupy the dwelling-house by virtue of that section); and

(b)as if the respondent were A (the person entitled as mentioned in subsection (1)(a) of that section).]

Annotations:

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36 One cohabitant or former cohabitant with no existing right to occupy.E+W

(1)This section applies if—

(a)one cohabitant or former cohabitant is entitled to occupy a dwelling-house by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving him the right to remain in occupation;

(b)the other cohabitant or former cohabitant is not so entitled; and

(c)that dwelling-house is the home in which they [F91cohabit or a home in which they at any time cohabited or intended to cohabit].

(2)The cohabitant or former cohabitant not so entitled may apply to the court for an order under this section against the other cohabitant or former cohabitant ( “the respondent”).

(3)If the applicant is in occupation, an order under this section must contain provision—

(a)giving the applicant the right not to be evicted or excluded from the dwelling-house or any part of it by the respondent for the period specified in the order; and

(b)prohibiting the respondent from evicting or excluding the applicant during that period.

(4)If the applicant is not in occupation, an order under this section must contain provision—

(a)giving the applicant the right to enter into and occupy the dwelling-house for the period specified in the order; and

(b)requiring the respondent to permit the exercise of that right.

(5)An order under this section may also—

(a)regulate the occupation of the dwelling-house by either or both of the parties;

(b)prohibit, suspend or restrict the exercise by the respondent of his right to occupy the dwelling-house;

(c)require the respondent to leave the dwelling-house or part of the dwelling-house; or

(d)exclude the respondent from a defined area in which the dwelling-house is included.

(6)In deciding whether to make an order under this section containing provision of the kind mentioned in subsection (3) or (4) and (if so) in what manner, the court shall have regard to all the circumstances including—

(a)the housing needs and housing resources of each of the parties and of any relevant child;

(b)the financial resources of each of the parties;

(c)the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3) or (4), on the health, safety or well-being of the parties and of any relevant child;

(d)the conduct of the parties in relation to each other and otherwise;

(e)the nature of the parties’ relationship [F92and in particular the level of commitment involved in it];

(g)whether there are or have been any children who are children of both parties or for whom both parties have or have had parental responsibility;

(h)the length of time that has elapsed since the parties ceased to live together; and

(i)the existence of any pending proceedings between the parties—

(i)for an order under paragraph 1(2)(d) or (e) of Schedule 1 to the M19Children Act 1989 (orders for financial relief against parents); or

(ii)relating to the legal or beneficial ownership of the dwelling-house.

(7)In deciding whether to exercise its powers to include one or more of the provisions referred to in subsection (5) ( “a subsection (5) provision”) and (if so) in what manner, the court shall have regard to all the circumstances including—

(a)the matters mentioned in subsection (6)(a) to (d); and

(b)the questions mentioned in subsection (8).

(8)The questions are—

(a)whether the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent if the subsection (5) provision is not included in the order; and

(b)whether the harm likely to be suffered by the respondent or child if the provision is included is as great as or greater than the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the provision is not included.

(9)An order under this section—

(a)may not be made after the death of either of the parties; and

(b)ceases to have effect on the death of either of them.

(10)An order under this section must be limited so as to have effect for a specified period not exceeding six months, but may be extended on one occasion for a further specified period not exceeding six months.

(11)A person who has an equitable interest in the dwelling-house or in the proceeds of sale of the dwelling-house but in whom there is not vested (whether solely or as joint tenant) a legal estate in fee simple or a legal term of years absolute in the dwelling-house is to be treated (but only for the purpose of determining whether he is eligible to apply under this section) as not being entitled to occupy the dwelling-house by virtue of that interest.

(12)Subsection (11) does not prejudice any right of such a person to apply for an order under section 33.

(13)So long as the order remains in force, subsections (3) to (6) of section 30 apply in relation to the applicant—

[F94(a)as if he were B (the person entitled to occupy the dwelling-house by virtue of that section); and

(b)as if the respondent were A (the person entitled as mentioned in subsection (1)(a) of that section).]

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

(a)one civil partner or former civil partner and the other civil partner or former civil partner occupy a dwelling-house which is or was the civil partnership home; but

(b)neither of them is entitled to remain in occupation—

(i)by virtue of a beneficial estate or interest or contract; or

(ii)by virtue of any enactment giving him the right to remain in occupation.]

(2)Either of the parties may apply to the court for an order against the other under this section.

(3)An order under this section may—

(a)require the respondent to permit the applicant to enter and remain in the dwelling-house or part of the dwelling-house;

(b)regulate the occupation of the dwelling-house by either or both of the [F97parties];

(c)require the respondent to leave the dwelling-house or part of the dwelling-house; or

(d)exclude the respondent from a defined area in which the dwelling-house is included.

(4)Subsections (6) and (7) of section 33 apply to the exercise by the court of its powers under this section as they apply to the exercise by the court of its powers under subsection (3) of that section.

(5)An order under this section must be limited so as to have effect for a specified period not exceeding six months, but may be extended on one or more occasions for a further specified period not exceeding six months.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

38 Neither cohabitant or former cohabitant entitled to occupy.E+W

(a)one cohabitant or former cohabitant and the other cohabitant or former cohabitant occupy a dwelling-house which is the home in which they [F98cohabit or cohabited]; but

(b)neither of them is entitled to remain in occupation—

(i)by virtue of a beneficial estate or interest or contract; or

(ii)by virtue of any enactment giving him the right to remain in occupation.

(2)Either of the parties may apply to the court for an order against the other under this section.

(3)An order under this section may—

(a)require the respondent to permit the applicant to enter and remain in the dwelling-house or part of the dwelling-house;

(b)regulate the occupation of the dwelling-house by either or both of the parties;

(c)require the respondent to leave the dwelling-house or part of the dwelling-house; or

(d)exclude the respondent from a defined area in which the dwelling-house is included.

(4)In deciding whether to exercise its powers to include one or more of the provisions referred to in subsection (3) ( “a subsection (3) provision”) and (if so) in what manner, the court shall have regard to all the circumstances including—

(a)the housing needs and housing resources of each of the parties and of any relevant child;

(b)the financial resources of each of the parties;

(c)the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3), on the health, safety or well-being of the parties and of any relevant child;

(d)the conduct of the parties in relation to each other and otherwise; and

(e)the questions mentioned in subsection (5).

(5)The questions are—

(a)whether the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent if the subsection (3) provision is not included in the order; and

(b)whether the harm likely to be suffered by the respondent or child if the provision is included is as great as or greater than the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the provision is not included.

(6)An order under this section shall be limited so as to have effect for a specified period not exceeding six months, but may be extended on one occasion for a further specified period not exceeding six months.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

39 Supplementary provisions.E+W

(1)In this Part an “occupation order” means an order under section 33, 35, 36, 37 or 38.

(2)An application for an occupation order may be made in other family proceedings or without any other family proceedings being instituted.

(3)If—

(a)an application for an occupation order is made under section 33, 35, 36, 37 or 38, and

(b)the court considers that it has no power to make the order under the section concerned, but that it has power to make an order under one of the other sections,

the court may make an order under that other section.

(4)The fact that a person has applied for an occupation order under sections 35 to 38, or that an occupation order has been made, does not affect the right of any person to claim a legal or equitable interest in any property in any subsequent proceedings (including subsequent proceedings under this Part).

40 Additional provisions that may be included in certain occupation orders.E+W

(1)The court may on, or at any time after, making an occupation order under section 33, 35 or 36—

(a)impose on either party obligations as to—

(i)the repair and maintenance of the dwelling-house; or

(ii)the discharge of rent, mortgage payments or other outgoings affecting the dwelling-house;

(b)order a party occupying the dwelling-house or any part of it (including a party who is entitled to do so by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving him the right to remain in occupation) to make periodical payments to the other party in respect of the accommodation, if the other party would (but for the order) be entitled to occupy the dwelling-house by virtue of a beneficial estate or interest or contract or by virtue of any such enactment;

(c)grant either party possession or use of furniture or other contents of the dwelling-house;

(d)order either party to take reasonable care of any furniture or other contents of the dwelling-house;

(e)order either party to take reasonable steps to keep the dwelling-house and any furniture or other contents secure.

(2)In deciding whether and, if so, how to exercise its powers under this section, the court shall have regard to all the circumstances of the case including—

(a)the financial needs and financial resources of the parties; and

(b)the financial obligations which they have, or are likely to have in the foreseeable future, including financial obligations to each other and to any relevant child.

(3)An order under this section ceases to have effect when the occupation order to which it relates ceases to have effect.

41 Additional considerations if parties are cohabitants or former cohabitants.E+W

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Non-molestation ordersE+W

42 Non-molestation orders.E+W

(1)In this Part a “non-molestation order” means an order containing either or both of the following provisions—

(a)provision prohibiting a person ( “the respondent”) from molesting another person who is associated with the respondent;

(b)provision prohibiting the respondent from molesting a relevant child.

(2)The court may make a non-molestation order—

(a)if an application for the order has been made (whether in other family proceedings or without any other family proceedings being instituted) by a person who is associated with the respondent; or

(b)if in any family proceedings to which the respondent is a party the court considers that the order should be made for the benefit of any other party to the proceedings or any relevant child even though no such application has been made.

(3)In subsection (2) “family proceedings” includes proceedings in which the court has made an emergency protection order under section 44 of the M20Children Act 1989 which includes an exclusion requirement (as defined in section 44A(3) of that Act).

(4)Where an agreement to marry is terminated, no application under subsection (2)(a) may be made by virtue of section 62(3)(e) by reference to that agreement after the end of the period of three years beginning with the day on which it is terminated.

[F100(4A)A court considering whether to make an occupation order shall also consider whether to exercise the power conferred by subsection (2)(b).

(4B)In this Part “the applicant”, in relation to a non-molestation order, includes (where the context permits) the person for whose benefit such an order would be or is made in exercise of the power conferred by subsection (2)(b).]

[F101(4ZA)If a civil partnership agreement (as defined by section 73 of the Civil Partnership Act 2004) is terminated, no application under this section may be made by virtue of section 62(3)(eza) by reference to that agreement after the end of the period of three years beginning with the day on which it is terminated.]

(5)In deciding whether to exercise its powers under this section and, if so, in what manner, the court shall have regard to all the circumstances including the need to secure the health, safety and well-being—

(6)A non-molestation order may be expressed so as to refer to molestation in general, to particular acts of molestation, or to both.

(7)A non-molestation order may be made for a specified period or until further order.

(8)A non-molestation order which is made in other family proceedings ceases to have effect if those proceedings are withdrawn or dismissed.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

(1)A person who without reasonable excuse does anything that he is prohibited from doing by a non-molestation order is guilty of an offence.

(2)In the case of a non-molestation order made by virtue of section 45(1), a person can be guilty of an offence under this section only in respect of conduct engaged in at a time when he was aware of the existence of the order.

(3)Where a person is convicted of an offence under this section in respect of any conduct, that conduct is not punishable as a contempt of court.

(4)A person cannot be convicted of an offence under this section in respect of any conduct which has been punished as a contempt of court.

(5)A person guilty of an offence under this section is liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;

(b)on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum, or both.

(6)A reference in any enactment to proceedings under this Part, or to an order under this Part, does not include a reference to proceedings for an offence under this section or to an order made in such proceedings.

“Enactment” includes an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978 (c. 30).]

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Further provisions relating to occupation and non-molestation ordersE+W

43 Leave of court required for applications by children under sixteen.E+W

(1)A child under the age of sixteen may not apply for an occupation order or a non-molestation order except with the leave of the court.

(2)The court may grant leave for the purposes of subsection (1) only if it is satisfied that the child has sufficient understanding to make the proposed application for the occupation order or non-molestation order.

44 Evidence of agreement to marry [F104or form a civil partnership].E+W

(1)Subject to subsection (2), the court shall not make an order under section 33 or 42 by virtue of section 62(3)(e) unless there is produced to it evidence in writing of the existence of the agreement to marry.

(2)Subsection (1) does not apply if the court is satisfied that the agreement to marry was evidenced by—

(a)the gift of an engagement ring by one party to the agreement to the other in contemplation of their marriage, or

(b)a ceremony entered into by the parties in the presence of one or more other persons assembled for the purpose of witnessing the ceremony.

[F105(3)Subject to subsection (4), the court shall not make an order under section 33 or 42 by virtue of section 62(3)(eza) unless there is produced to it evidence in writing of the existence of the civil partnership agreement (as defined by section 73 of the Civil Partnership Act 2004).

(4)Subsection (3) does not apply if the court is satisfied that the civil partnership agreement was evidenced by—

(a)a gift by one party to the agreement to the other as a token of the agreement, or

(b)a ceremony entered into by the parties in the presence of one or more other persons assembled for the purpose of witnessing the ceremony.]

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

45 Ex parte orders.E+W

(1)The court may, in any case where it considers that it is just and convenient to do so, make an occupation order or a non-molestation order even though the respondent has not been given such notice of the proceedings as would otherwise be required by rules of court.

(2)In determining whether to exercise its powers under subsection (1), the court shall have regard to all the circumstances including—

(a)any risk of significant harm to the applicant or a relevant child, attributable to conduct of the respondent, if the order is not made immediately;

(b)whether it is likely that the applicant will be deterred or prevented from pursuing the application if an order is not made immediately; and

(c)whether there is reason to believe that the respondent is aware of the proceedings but is deliberately evading service and that the applicant or a relevant child will be seriously prejudiced by the delay involved—

(i)where the court is a magistrates’ court, in effecting service of proceedings; or

(ii)in any other case, in effecting substituted service.

(3)If the court makes an order by virtue of subsection (1) it must afford the respondent an opportunity to make representations relating to the order as soon as just and convenient at a full hearing.

(4)If, at a full hearing, the court makes an occupation order ( “the full order”), then—

(a)for the purposes of calculating the maximum period for which the full order may be made to have effect, the relevant section is to apply as if the period for which the full order will have effect began on the date on which the initial order first had effect; and

(b)the provisions of section 36(10) or 38(6) as to the extension of orders are to apply as if the full order and the initial order were a single order.

(5)In this section—

“full hearing” means a hearing of which notice has been given to all the parties in accordance with rules of court;

“initial order” means an occupation order made by virtue of subsection (1); and

46 Undertakings.E+W

(1)In any case where the court has power to make an occupation order or non-molestation order, the court may accept an undertaking from any party to the proceedings.

(2)No power of arrest may be attached to any undertaking given under subsection (1).

(3)The court shall not accept an undertaking under subsection (1) [F106instead of making an occupation order] in any case where apart from this section a power of arrest would be attached to the order.

[F107(3A)The court shall not accept an undertaking under subsection (1) instead of making a non-molestation order in any case where it appears to the court that—

(a)the respondent has used or threatened violence against the applicant or a relevant child; and

(b)for the protection of the applicant or child it is necessary to make a non-molestation order so that any breach may be punishable under section 42A.]

(4)An undertaking given to a court under subsection (1) is enforceable as if [F108the court had made an occupation order or a non-molestation order in terms corresponding to those of the undertaking].

(5)This section has effect without prejudice to the powers of the High Court and the county court apart from this section.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

47 Arrest for breach of order.E+W

(b)it appears to the court that the respondent has used or threatened violence against the applicant or a relevant child,

it shall attach a power of arrest to one or more provisions of the order unless satisfied that in all the circumstances of the case the applicant or child will be adequately protected without such a power of arrest.

(3)Subsection (2) does not apply in any case where [F111the occupation order] is made by virtue of section 45(1), but in such a case the court may attach a power of arrest to one or more provisions of the order if it appears to it—

(a)that the respondent has used or threatened violence against the applicant or a relevant child; and

(b)that there is a risk of significant harm to the applicant or child, attributable to conduct of the respondent, if the power of arrest is not attached to those provisions immediately.

(4)If, by virtue of subsection (3), the court attaches a power of arrest to any provisions of [F112an occupation order], it may provide that the power of arrest is to have effect for a shorter period than the other provisions of the order.

(5)Any period specified for the purposes of subsection (4) may be extended by the court (on one or more occasions) on an application to vary or discharge [F113the occupation order].

(6)If, by virtue of subsection (2) or (3), a power of arrest is attached to certain provisions of an order, a constable may arrest without warrant a person whom he has reasonable cause for suspecting to be in breach of any such provision.

(7)If a power of arrest is attached under subsection (2) or (3) to certain provisions of the order and the respondent is arrested under subsection (6)—

(a)he must be brought before the relevant judicial authority within the period of 24 hours beginning at the time of his arrest; and

(b)if the matter is not then disposed of forthwith, the relevant judicial authority before whom he is brought may remand him.

In reckoning for the purposes of this subsection any period of 24 hours, no account is to be taken of Christmas Day, Good Friday or any Sunday.

(b)has made an occupation order but has not attached a power of arrest under subsection (2) or (3) to any provision of the order, or has attached that power only to certain provisions of the order,]

then, if at any time the applicant considers that the respondent has failed to comply with the order, he may apply to the relevant judicial authority for the issue of a warrant for the arrest of the respondent.

(9)The relevant judicial authority shall not issue a warrant on an application under subsection (8) unless—

(a)the application is substantiated on oath; and

(b)the relevant judicial authority has reasonable grounds for believing that the respondent has failed to comply with the order.

(10)If a person is brought before a court by virtue of a warrant issued under subsection (9) and the court does not dispose of the matter forthwith, the court may remand him.

(11)Schedule 5 (which makes provision corresponding to that applying in magistrates’ courts in civil cases under sections 128 and 129 of the M21Magistrates’ Courts Act 1980) has effect in relation to the powers of the High Court and a county court to remand a person by virtue of this section.

(12)If a person remanded under this section is granted bail (whether in the High Court or a county court under Schedule 5 or in a magistrates’ court under section 128 or 129 of the Magistrates’ Courts Act 1980), he may be required by the relevant judicial authority to comply, before release on bail or later, with such requirements as appear to that authority to be necessary to secure that he does not interfere with witnesses or otherwise obstruct the course of justice.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

48 Remand for medical examination and report.E+W

(1)If the relevant judicial authority has reason to consider that a medical report will be required, any power to remand a person under section 47(7)(b) or (10) may be exercised for the purpose of enabling a medical examination and report to be made.

(2)If such a power is so exercised, the adjournment must not be for more than 4 weeks at a time unless the relevant judicial authority remands the accused in custody.

(3)If the relevant judicial authority so remands the accused, the adjournment must not be for more than 3 weeks at a time.

(4)If there is reason to suspect that a person who has been arrested—

(a)under section 47(6), or

(b)under a warrant issued on an application made under section 47(8),

is suffering from [F115mental disorder within the meaning of the Mental Health Act 1983], the relevant judicial authority has the same power to make an order under section 35 of [F116that Act](remand for report on accused’s mental condition) as the Crown Court has under [F117that section] in the case of an accused person within the meaning of that section.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

49 Variation and discharge of orders.E+W

(1)An occupation order or non-molestation order may be varied or discharged by the court on an application by—

(a)the respondent, or

(b)the person on whose application the order was made.

(2)In the case of a non-molestation order made by virtue of section 42(2)(b), the order may be varied or discharged by the court even though no such application has been made.

(3)If [F118B’s home rights are, under section 31,] are a charge on the estate or interest of [F119A] or of trustees for [F119A], an order under section 33 against [F119A] may also be varied or discharged by the court on an application by any person deriving title under [F119A] or under the trustees and affected by the charge.

(4)If, by virtue of section 47(3), a power of arrest has been attached to certain provisions of an occupation order F120. . . , the court may vary or discharge the order under subsection (1) in so far as it confers a power of arrest (whether or not any application has been made to vary or discharge any other provision of the order).

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Enforcement powers of magistrates’ courtsE+W

50 Power of magistrates’ court to suspend execution of committal order.E+W

(1)If, under section 63(3) of the M22Magistrates’ Courts Act 1980, a magistrates’ court has power to commit a person to custody for breach of a relevant requirement, the court may by order direct that the execution of the order of committal is to be suspended for such period or on such terms and conditions as it may specify.

(2)In subsection (1) “a relevant requirement” means—

(a)an occupation order or non-molestation order;

(b)an exclusion requirement included by virtue of section 38A of the M23Children Act 1989 in an interim care order made under section 38 of that Act; or

(c)an exclusion requirement included by virtue of section 44A of the Children Act 1989 in an emergency protection order under section 44 of that Act.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

51 Power of magistrates’ court to order hospital admission or guardianship.E+W

(1)A magistrates’ court has the same power to make a hospital order or guardianship order under section 37 of the M24Mental Health Act 1983 or an interim hospital order under section 38 of that Act in the case of a person suffering from [F121mental disorder within the meaning of that Act] who could otherwise be committed to custody for breach of a relevant requirement as a magistrates’ court has under those sections in the case of a person convicted of an offence punishable on summary conviction with imprisonment.

(2)In subsection (1) “a relevant requirement” has the meaning given by section 50(2).

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Interim care orders and emergency protection ordersE+W

52 Amendments of Children Act 1989.E+W

Schedule 6 makes amendments of the provisions of the Children Act 1989 relating to interim care orders and emergency protection orders.

Transfer of tenanciesE+W

53 Transfer of certain tenancies.E+W

Schedule 7 makes provision in relation to the transfer of certain tenancies on divorce etc. or on separation of cohabitants.

Dwelling-house subject to mortgageE+W

54 Dwelling-house subject to mortgage.E+W

(1)In determining for the purposes of this Part whether a person is entitled to occupy a dwelling-house by virtue of an estate or interest, any right to possession of the dwelling-house conferred on a mortgagee of the dwelling-house under or by virtue of his mortgage is to be disregarded.

(2)Subsection (1) applies whether or not the mortgagee is in possession.

(3)Where a person ( “A”) is entitled to occupy a dwelling-house by virtue of an estate or interest, a connected person does not by virtue of—

have any larger right against the mortgagee to occupy the dwelling-house than A has by virtue of his estate or interest and of any contract with the mortgagee.

(4)Subsection (3) does not apply, in the case of [F122home rights], if under section 31 those rights are a charge, affecting the mortgagee, on the estate or interest mortgaged.

(5)In this section “connected person”, in relation to any person, means that person’s spouse, former spouse [F123, civil partner, former civil partner], cohabitant or former cohabitant.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

55 Actions by mortgagees: joining connected persons as parties.E+W

(1)This section applies if a mortgagee of land which consists of or includes a dwelling-house brings an action in any court for the enforcement of his security.

(2)A connected person who is not already a party to the action is entitled to be made a party in the circumstances mentioned in subsection (3).

(3)The circumstances are that—

(a)the connected person is enabled by section 30(3) or (6) (or by section 30(3) or (6) as applied by section 35(13) or 36(13)), to meet the mortgagor’s liabilities under the mortgage;

(b)he has applied to the court before the action is finally disposed of in that court; and

(c)the court sees no special reason against his being made a party to the action and is satisfied—

(i)that he may be expected to make such payments or do such other things in or towards satisfaction of the mortgagor’s liabilities or obligations as might affect the outcome of the proceedings; or

(ii)that the expectation of it should be considered under section 36 of the M25Administration of Justice Act 1970.

(4)In this section “connected person” has the same meaning as in section 54.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

56 Actions by mortgagees: service of notice on certain persons.E+W

(1)This section applies if a mortgagee of land which consists, or substantially consists, of a dwelling-house brings an action for the enforcement of his security, and at the relevant time there is—

(a)in the case of unregistered land, a land charge of Class F registered against the person who is the estate owner at the relevant time or any person who, where the estate owner is a trustee, preceded him as trustee during the subsistence of the mortgage; or

(b)in the case of registered land, a subsisting registration of—

(i)a notice under section 31(10);

(ii)a notice under section 2(8) of the M26Matrimonial Homes Act 1983; or

(iii)a notice or caution under section 2(7) of the M27Matrimonial Homes Act 1967.

(2)If the person on whose behalf—

(a)the land charge is registered, or

(b)the notice or caution is entered,

is not a party to the action, the mortgagee must serve notice of the action on him.

(3)If—

(a)an official search has been made on behalf of the mortgagee which would disclose any land charge of Class F, notice or caution within subsection (1)(a) or (b),

(b)a certificate of the result of the search has been issued, and

(c)the action is commenced within the priority period,

the relevant time is the date of the certificate.

(4)In any other case the relevant time is the time when the action is commenced.

(5)The priority period is, for both registered and unregistered land, the period for which, in accordance with section 11(5) and (6) of the M28Land Charges Act 1972, a certificate on an official search operates in favour of a purchaser.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Jurisdiction and procedure etc.E+W

57 Jurisdiction of courts.E+W

(1)For the purposes of this Part “the court” means the High Court, a county court or a magistrates’ court.

(2)Subsection (1) is subject to the provision made by or under the following provisions of this section, to section 59 and to any express provision as to the jurisdiction of any court made by any other provision of this Part.

(3)The Lord Chancellor may [F124, after consulting the Lord Chief Justice,] by order specify proceedings under this Part which may only be commenced in—

(5)The Lord Chancellor may [F126, after consulting the Lord Chief Justice,] by order provide that in specified circumstances the whole, or any specified part of any specified proceedings under this Part is to be transferred to—

(6)An order under subsection (5) may provide for the transfer to be made at any stage, or specified stage, of the proceedings and whether or not the proceedings, or any part of them, have already been transferred.

(7)An order under subsection (5) may make such provision as the Lord Chancellor thinks appropriate [F127, after consulting the Lord Chief Justice] for excluding specified proceedings from the operation of section 38 or 39 of the M29Matrimonial and Family Proceedings Act 1984 (transfer of family proceedings) or any other enactment which would otherwise govern the transfer of those proceedings, or any part of them.

(8)For the purposes of subsections (3), (4) and (5), there are three levels of court—

(a)the High Court;

(b)any county court; and

(c)any magistrates’ court.

(9)The Lord Chancellor may [F128, after consulting the Lord Chief Justice,] by order make provision for the principal registry of the Family Division of the High Court to be treated as if it were a county court for specified purposes of this Part, or of any provision made under this Part.

(10)Any order under subsection (9) may make such provision as the Lord Chancellor thinks expedient [F129, after consulting the Lord Chief Justice,] for the purpose of applying (with or without modifications) provisions which apply in relation to the procedure in county courts to the principal registry when it acts as if it were a county court.

(11)In this section “specified” means specified by an order under this section.

[F130(12)The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.]

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

58 Contempt proceedings.E+W

The powers of the court in relation to contempt of court arising out of a person’s failure to comply with an order under this Part may be exercised by the relevant judicial authority.

59 Magistrates’ courts.E+W

(1)A magistrates’ court shall not be competent to entertain any application, or make any order, involving any disputed question as to a party’s entitlement to occupy any property by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving him the right to remain in occupation, unless it is unnecessary to determine the question in order to deal with the application or make the order.

(2)A magistrates’ court may decline jurisdiction in any proceedings under this Part if it considers that the case can more conveniently be dealt with by another court.

(3)The powers of a magistrates’ court under section 63(2) of the M30Magistrates’ Courts Act 1980 to suspend or rescind orders shall not apply in relation to any order made under this Part.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

60 Provision for third parties to act on behalf of victims of domestic violence.E+W

(1)Rules of court may provide for a prescribed person, or any person in a prescribed category, ( “a representative”) to act on behalf of another in relation to proceedings to which this Part applies.

(2)Rules made under this section may, in particular, authorise a representative to apply for an occupation order or for a non-molestation order for which the person on whose behalf the representative is acting could have applied.

(3)Rules made under this section may prescribe—

(a)conditions to be satisfied before a representative may make an application to the court on behalf of another; and

(b)considerations to be taken into account by the court in determining whether, and if so how, to exercise any of its powers under this Part when a representative is acting on behalf of another.

(4)Any rules made under this section may be made so as to have effect for a specified period and may make consequential or transitional provision with respect to the expiry of the specified period.

(5)Any such rules may be replaced by further rules made under this section.

61 Appeals.E+W

(a)the making by a magistrates’ court of any order under this Part, or

(b)any refusal by a magistrates’ court to make such an order,

but no appeal shall lie against any exercise by a magistrates’ court of the power conferred by section 59(2).

(2)On an appeal under this section, [F131a county court ] may make such orders as may be necessary to give effect to its determination of the appeal.

(3)Where an order is made under subsection (2), [F131a county court ] may also make such incidental or consequential orders as appear to it to be just.

(4)Any order of [F131a county court ] made on an appeal under this section (other than one directing that an application be re-heard by a magistrates’ court) shall, for the purposes—

(a)of the enforcement of the order, and

(b)of any power to vary, revive or discharge orders,

be treated as if it were an order of the magistrates’ court from which the appeal was brought and not an order of [F131a county court ].

(5)The Lord Chancellor may [F132, after consulting the Lord Chief Justice,] by order make provision as to the circumstances in which appeals may be made against decisions taken by courts on questions arising in connection with the transfer, or proposed transfer, of proceedings by virtue of any order under section 57(5).

(6)Except to the extent provided for in any order made under subsection (5), no appeal may be made against any decision of a kind mentioned in that subsection.

[F133(7)The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.]

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

GeneralE+W

(a) “cohabitants” are [F134[F135two persons who are neither married to each other nor civil partners of each other but are living together as husband and wife or as if they were civil partners;] and]

(b)[F136 “cohabit” and “former cohabitants” are to be read accordingly, but the latter expression] does not include cohabitants who have subsequently married each other [F137or become civil partners of each other].

(2)In this Part, “relevant child”, in relation to any proceedings under this Part, means—

(a)any child who is living with or might reasonably be expected to live with either party to the proceedings;

(b)any child in relation to whom an order under the M31Adoption Act 1976 [F138, the Adoption and Children Act 2002] or the M32Children Act 1989 is in question in the proceedings; and

(c)any other child whose interests the court considers relevant.

(3)For the purposes of this Part, a person is associated with another person if—

(a)an adoption agency, within the meaning of section 2 of the Adoption and Children Act 2002, has power to place him for adoption under section 19 of that Act (placing children with parental consent) or he has become the subject of an order under section 21 of that Act (placement orders), or

(b)he is freed for adoption by virtue of an order made—

(i)in England and Wales, under section 18 of the Adoption Act 1976,

(ii)in Scotland, under section 18 of the Adoption (Scotland) Act 1978, or

(iii)in Northern Ireland, under Article 17(1) or 18(1) of the Adoption (Northern Ireland) Order 1987.]

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

“mortgage”, “mortgagor” and “mortgagee” have the same meaning as in the M33Law of Property Act 1925;

“mortgage payments” includes any payments which, under the terms of the mortgage, the mortgagor is required to make to any person;

“non-molestation order” has the meaning given by section 42(1);

“occupation order” has the meaning given by section 39;

“parental responsibility” has the same meaning as in the M34Children Act 1989;

“relative”, in relation to a person, means—

(a)

the father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, grandmother, grandfather, grandson or granddaughter of that person or of that person’s [F148spouse, former spouse, civil partner or former civil partner], or

(b)

the brother, sister, uncle, aunt, niece [F149, nephew or first cousin] (whether of the full blood or of the half blood or [F150by marriage or civil partnership)] of that person or of that person’s [F148spouse, former spouse, civil partner or former civil partner],

and includes, in relation to a person who [F151is cohabiting or has cohabited with another person], any person who would fall within paragraph (a) or (b) if the parties were married to each other [F152or were civil partners of each other];

“relevant child”, in relation to any proceedings under this Part, has the meaning given by section 62(2);

“the relevant judicial authority”, in relation to any order under this Part, means—

(a)

where the order was made by the High Court, a judge of that court;

(b)

where the order was made by a county court, a judge or district judge of that or any other county court; or

(c)

where the order was made by a magistrates’ court, any magistrates’ court.

(2)The enactments referred to in the definition of “family proceedings” are—

(3)Where the question of whether harm suffered by a child is significant turns on the child’s health or development, his health or development shall be compared with that which could reasonably be expected of a similar child.

(4)For the purposes of sections 31, 32, 53 and 54 and such other provisions of this Part (if any) as may be prescribed, this Part is to have effect as if paragraph (b) of the definition of “dwelling-house” were omitted.

(5)It is hereby declared that this Part applies as between the parties to a marriage even though either of them is, or has at any time during the marriage been, married to more than one person.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Forced marriage protection ordersE+W

63AForced marriage protection ordersE+W

(a)a person from being forced into a marriage or from any attempt to be forced into a marriage; or

(b)a person who has been forced into a marriage.

(2)In deciding whether to exercise its powers under this section and, if so, in what manner, the court must have regard to all the circumstances including the need to secure the health, safety and well-being of the person to be protected.

(3)In ascertaining that person's well-being, the court must, in particular, have such regard to the person's wishes and feelings (so far as they are reasonably ascertainable) as the court considers appropriate in the light of the person's age and understanding.

(4)For the purposes of this Part a person (“A”) is forced into a marriage if another person (“B”) forces A to enter into a marriage (whether with B or another person) without A's free and full consent.

(5)For the purposes of subsection (4) it does not matter whether the conduct of B which forces A to enter into a marriage is directed against A, B or another person.

(6)In this Part—

“force” includes coerce by threats or other psychological means (and related expressions are to be read accordingly); and

“forced marriage protection order” means an order under this section.

63BContents of ordersE+W

(1)A forced marriage protection order may contain—

(a)such prohibitions, restrictions or requirements; and

(b)such other terms;

as the court considers appropriate for the purposes of the order.

(2)The terms of such orders may, in particular, relate to—

(a)conduct outside England and Wales as well as (or instead of) conduct within England and Wales;

(b)respondents who are, or may become, involved in other respects as well as (or instead of) respondents who force or attempt to force, or may force or attempt to force, a person to enter into a marriage;

(c)other persons who are, or may become, involved in other respects as well as respondents of any kind.

(3)For the purposes of subsection (2) examples of involvement in other respects are—

(a)aiding, abetting, counselling, procuring, encouraging or assisting another person to force, or to attempt to force, a person to enter into a marriage; or

(b)conspiring to force, or to attempt to force, a person to enter into a marriage.

63CApplications and other occasions for making ordersE+W

(1)The court may make a forced marriage protection order—

(a)on an application being made to it; or

(b)without an application being made to it but in the circumstances mentioned in subsection (6).

(2)An application may be made by—

(a)the person who is to be protected by the order; or

(b)a relevant third party.

(3)An application may be made by any other person with the leave of the court.

(4)In deciding whether to grant leave, the court must have regard to all the circumstances including—

(a)the applicant's connection with the person to be protected;

(b)the applicant's knowledge of the circumstances of the person to be protected; and

(c)the wishes and feelings of the person to be protected so far as they are reasonably ascertainable and so far as the court considers it appropriate, in the light of the person's age and understanding, to have regard to them.

(5)An application under this section may be made in other family proceedings or without any other family proceedings being instituted.

(6)The circumstances in which the court may make an order without an application being made are where—

(a)any other family proceedings are before the court (“the current proceedings”);

(b)the court considers that a forced marriage protection order should be made to protect a person (whether or not a party to the current proceedings); and

(c)a person who would be a respondent to any such proceedings for a forced marriage protection order is a party to the current proceedings.

(7)In this section—

“family proceedings” has the same meaning as in Part 4 (see section 63(1) and (2)) but also includes—

(a)

proceedings under the inherent jurisdiction of the High Court in relation to adults;

(b)

proceedings in which the court has made an emergency protection order under section 44 of the Children Act 1989 (c. 41) which includes an exclusion requirement (as defined in section 44A(3) of that Act); and

(c)

proceedings in which the court has made an order under section 50 of the Act of 1989 (recovery of abducted children etc.); and

“relevant third party” means a person specified, or falling within a description of persons specified, by order of the Lord Chancellor.

(8)An order of the Lord Chancellor under subsection (7) may, in particular, specify the Secretary of State.

Further provision about ordersE+W

63DEx parte orders: Part 4AE+W

(1)The court may, in any case where it considers that it is just and convenient to do so, make a forced marriage protection order even though the respondent has not been given such notice of the proceedings as would otherwise be required by rules of court.

(2)In deciding whether to exercise its powers under subsection (1), the court must have regard to all the circumstances including—

(a)any risk of significant harm to the person to be protected or another person if the order is not made immediately;

(b)whether it is likely that an applicant will be deterred or prevented from pursuing an application if an order is not made immediately; and

(c)whether there is reason to believe that—

(i)the respondent is aware of the proceedings but is deliberately evading service; and

(ii)the delay involved in effecting substituted service will cause serious prejudice to the person to be protected or (if a different person) an applicant.

(3)The court must give the respondent an opportunity to make representations about any order made by virtue of subsection (1).

(4)The opportunity must be—

(a)as soon as just and convenient; and

(b)at a hearing of which notice has been given to all the parties in accordance with rules of court.

63EUndertakings instead of ordersE+W

(1)The court may, subject to subsection (3), accept an undertaking from the respondent to proceedings for a forced marriage protection order if it has power to make such an order.

(2)No power of arrest may be attached to an undertaking given under subsection (1).

(3)The court may not accept an undertaking under subsection (1) instead of making an order if a power of arrest would otherwise have been attached to the order.

(4)An undertaking given to the court under subsection (1) is enforceable as if the court had made the order in terms corresponding to those of the undertaking.

(5)This section is without prejudice to the powers of the court apart from this section.

63FDuration of ordersE+W

A forced marriage protection order may be made for a specified period or until varied or discharged.

63GVariation of orders and their dischargeE+W

(1)The court may vary or discharge a forced marriage protection order on an application by—

(a)any party to the proceedings for the order;

(b)the person being protected by the order (if not a party to the proceedings for the order); or

(c)any person affected by the order.

(2)In addition, the court may vary or discharge a forced marriage protection order made by virtue of section 63C(1)(b) even though no application under subsection (1) above has been made to the court.

(3)Section 63D applies to a variation of a forced marriage protection order as it applies to the making of such an order.

(4)Section 63E applies to proceedings for a variation of a forced marriage protection order as it applies to proceedings for the making of such an order.

(5)Accordingly, references in sections 63D and 63E to making a forced marriage protection order are to be read for the purposes of subsections (3) and (4) above as references to varying such an order.

(6)Subsection (7) applies if a power of arrest has been attached to provisions of a forced marriage protection order by virtue of section 63H.

(7)The court may vary or discharge the order under this section so far as it confers a power of arrest (whether or not there is a variation or discharge of any other provision of the order).

Arrest for breach of ordersE+W

63HAttachment of powers of arrest to ordersE+W

(1)Subsection (2) applies if the court—

(a)intends to make a forced marriage protection order otherwise than by virtue of section 63D; and

(b)considers that the respondent has used or threatened violence against the person being protected or otherwise in connection with the matters being dealt with by the order.

(2)The court must attach a power of arrest to one or more provisions of the order unless it considers that, in all the circumstances of the case, there will be adequate protection without such a power.

(3)Subsection (4) applies if the court—

(a)intends to make a forced marriage protection order by virtue of section 63D; and

(b)considers that the respondent has used or threatened violence against the person being protected or otherwise in connection with the matters being dealt with by the order.

(4)The court may attach a power of arrest to one or more provisions of the order if it considers that there is a risk of significant harm to a person, attributable to conduct of the respondent, if the power of arrest is not attached to the provisions immediately.

(5)The court may provide for a power of arrest attached to any provisions of an order under subsection (4) to have effect for a shorter period than the other provisions of the order.

(6)Any period specified for the purposes of subsection (5) may be extended by the court (on one or more occasions) on an application to vary or discharge the order.

(7)In this section “respondent” includes any person who is not a respondent but to whom an order is directed.

63IArrest under attached powersE+W

(1)Subsection (2) applies if a power of arrest is attached to provisions of a forced marriage protection order under section 63H.

(2)A constable may arrest without warrant a person whom the constable has reasonable cause for suspecting to be in breach of any such provision or otherwise in contempt of court in relation to the order.

(3)A person arrested under subsection (2) must be brought before the relevant judge within the period of 24 hours beginning at the time of the person's arrest.

(4)In calculating any period of 24 hours for the purposes of subsection (3), Christmas Day, Good Friday and any Sunday are to be ignored.

63JArrest under warrantE+W

(1)Subsection (2) applies if the court has made a forced marriage protection order but—

(a)no power of arrest is attached to any provision of the order under section 63H;

(b)such a power is attached only to certain provisions of the order; or

(c)such a power was attached for a shorter period than other provisions of the order and that period has expired.

(2)An interested party may apply to the relevant judge for the issue of a warrant for the arrest of a person if the interested party considers that the person has failed to comply with the order or is otherwise in contempt of court in relation to the order.

(3)The relevant judge must not issue a warrant on an application under subsection (2) unless—

(a)the application is substantiated on oath; and

(b)the relevant judge has reasonable grounds for believing that the person to be arrested has failed to comply with the order or is otherwise in contempt of court in relation to the order.

but no application may be made under subsection (2) by a person falling within paragraph (c) without the leave of the relevant judge.

63KRemand: generalE+W

(1)The court before which an arrested person is brought under section 63I(3) or by virtue of a warrant issued under section 63J may, if the matter is not then disposed of immediately, remand the person concerned.

(2)Schedule 5 has effect in relation to the powers of the court to remand a person by virtue of this section but as if the following modifications were made to the Schedule.

(3)The modifications are that—

(a)in paragraph 2(1) of Schedule 5, the reference to section 47 is to be read as a reference to this section; and

(b)in paragraph 2(5)(b) of the Schedule, the reference to section 48(1) is to be read as a reference to section 63L(1).

(4)Subsection (5) applies if a person remanded under this section is granted bail under Schedule 5 as modified above.

(5)The person may be required by the relevant judge to comply, before release on bail or later, with such requirements as appear to the relevant judge to be necessary to secure that the person does not interfere with witnesses or otherwise obstruct the course of justice.

63LRemand: medical examination and reportE+W

(1)Any power to remand a person under section 63K(1) may be exercised for the purpose of enabling a medical examination and report to be made if the relevant judge has reason to consider that a medical report will be required.

(2)If such a power is so exercised, the adjournment must not be for more than 4 weeks at a time unless the relevant judge remands the accused in custody.

(3)If the relevant judge remands the accused in custody, the adjournment must not be for more than 3 weeks at a time.

(4)Subsection (5) applies if there is reason to suspect that a person who has been arrested—

(a)under section 63I(2); or

(b)under a warrant issued on an application made under section 63J(2);

is suffering from [F158mental disorder within the meaning of the Mental Health Act 1983].

(5)The relevant judge has the same power to make an order under section 35 of the Mental Health Act 1983 (c. 20) (remand for report on accused's mental condition) as the Crown Court has under section 35 of that Act in the case of an accused person within the meaning of that section.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Jurisdiction and procedureE+W

63MJurisdiction of courts: Part 4AE+W

(1)For the purposes of this Part “the court” means the High Court or a county court.

(2)Subsection (1) is subject to any provision made by virtue of subsections (3) and (4).

(3)Section 57(3) to (12) (allocation of proceedings to courts etc.) apply for the purposes of this Part as they apply for the purposes of Part 4 but as if the following modification were made.

(4)The modification is that section 57(8) is to be read as if there were substituted for it—

“(8)For the purposes of subsections (3), (4) and (5), there are two levels of court—

(a)the High Court; and

(b)any county court.”

Prospective

63NPower to extend jurisdiction to magistrates' courtsE+W

(1)The Lord Chancellor may, after consulting the Lord Chief Justice, by order provide for magistrates' courts to be included among the courts who may hear proceedings under this Part.

(2)An order under subsection (1) may, in particular, make any provision in relation to magistrates' courts which corresponds to provision made in relation to such courts by or under Part 4.

(3)Any power to make an order under this section (including that power as extended by section 65(2)) may, in particular, be exercised by amending, repealing, revoking or otherwise modifying any provision made by or under this Part or any other enactment.

63OContempt proceedings: Part 4AE+W

The powers of the court in relation to contempt of court arising out of a person's failure to comply with a forced marriage protection order or otherwise in connection with such an order may be exercised by the relevant judge.

63PAppeals: Part 4AE+W

(1)The Lord Chancellor may, after consulting the Lord Chief Justice, by order make provision as to the circumstances in which appeals may be made against decisions taken by courts on questions arising in connection with the transfer, or proposed transfer, of proceedings by virtue of an order made under section 57(5) as applied by section 63M(3) and (4).

(2)Except so far as provided for in any order made under subsection (1), no appeal may be made against any decision of a kind mentioned in that subsection.

(d)any right to an occupation order or a non-molestation order under Part 4 of this Act;

(e)any protection or assistance under the Children Act 1989 (c. 41);

(f)any claim in tort; or

(g)the law of marriage.

63SInterpretation of Part 4AE+W

In this Part—

“the court” is to be read with section 63M;

“force” (and related expressions), in relation to a marriage, are to be read in accordance with section 63A(4) to (6);

“forced marriage protection order” has the meaning given by section 63A(6);

“marriage” means any religious or civil ceremony of marriage (whether or not legally binding); and

“the relevant judge”, in relation to any order under this Part, means—

(a)

where the order was made by the High Court, a judge of that court; and

(b)

where the order was made by a county court, a judge or district judge of that or any other county court.]

Part VE+W+S+N.I. Supplemental

Prospective

64 Provision for separate representation for children.E+W

(1)The Lord Chancellor may by regulations provide for the separate representation of children in proceedings in England and Wales which relate to any matter in respect of which a question has arisen, or may arise, under—

(2)The regulations may provide for such representation only in specified circumstances.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

64 Provision for separate representation for children.E+W

(1)The Lord Chancellor may by regulations provide for the separate representation of children in proceedings in England and Wales which relate to any matter in respect of which a question has arisen, or may arise, under—

(2)The regulations may provide for such representation only in specified circumstances.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

65 Rules, regulations and orders.E+W

(1)Any power to make rules, orders or regulations which is conferred by this Act is exercisable by statutory instrument.

(2)Any statutory instrument made under this Act may—

(a)contain such incidental, supplemental, consequential and transitional provision as the Lord Chancellor considers appropriate; and

(b)make different provision for different purposes.

(3)Any statutory instrument containing an order, rules or regulations made under this Act, other than an order made under section 5(8) or 67(3), shall be subject to annulment by a resolution of either House of Parliament.

(4)No order shall be made under section 5(8) unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.

(5)This section does not apply [F159to rules made under section 12 or] to rules of court made, or any power to make rules of court, for the purposes of this Act.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

(2)Schedule 9 provides for the making of other modifications consequential on provisions of this Act, makes transitional provisions and provides for savings.

(3)Schedule 10 repeals certain enactments.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

67 Short title, commencement and extent.E+W+S+N.I.

(2)Section 65 and this section come into force on the passing of this Act.

(3)The other provisions of this Act come into force on such day as the Lord Chancellor may by order appoint; and different days may be appointed for different purposes.

(4)This Act, other than section 17, extends only to England and Wales, except that—

(a)in Schedule 8—

(i)the amendments of section 38 of the M41Family Law Act 1986 extend also to Northern Ireland;

(ii)the amendments of the M42Judicial Proceedings (Regulation of Reports) Act 1926 extend also to Scotland; and

(iii)the amendments of the M43Maintenance Orders Act 1950, the M44Civil Jurisdiction and Judgments Act 1982, the M45Finance Act 1985 and sections 42 and 51 of the Family Law Act 1986 extend also to both Northern Ireland and Scotland; and

(b)in Schedule 10, the repeal of section 2(1)(b) of the M46Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968 extends also to Scotland.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

SCHEDULE 1E+W Arrangements for the future

The first exemptionE+W

(b)the applicant has, during the period for reflection and consideration, taken such steps as are reasonably practicable to try to reach agreement about the parties’ financial arrangements; and

(c)the applicant has made an application to the court for financial relief and has complied with all requirements of the court in relation to proceedings for financial relief but—

(i)the other party has delayed in complying with requirements of the court or has otherwise been obstructive; or

(ii)for reasons which are beyond the control of the applicant, or of the other party, the court has been prevented from obtaining the information which it requires to determine the financial position of the parties.

The second exemptionE+W

2The circumstances referred to in section 9(7)(b) are that—E+W

(a)the requirements of section 11 have been satisfied;

(b)the applicant has, during the period for reflection and consideration, taken such steps as are reasonably practicable to try to reach agreement about the parties’ financial arrangements;

(c)because of—

(i)the ill health or disability of the applicant, the other party or a child of the family (whether physical or mental), or

(ii)an injury suffered by the applicant, the other party or a child of the family,

the applicant has not been able to reach agreement with the other party about those arrangements and is unlikely to be able to do so in the foreseeable future; and

(d)a delay in making the order applied for under section 3—

(i)would be significantly detrimental to the welfare of any child of the family; or

(ii)would be seriously prejudicial to the applicant.

The third exemptionE+W

3The circumstances referred to in section 9(7)(c) are that—E+W

(a)the requirements of section 11 have been satisfied;

(b)the applicant has found it impossible to contact the other party; and

(c)as a result, it has been impossible for the applicant to reach agreement with the other party about their financial arrangements.

The fourth exemptionE+W

4The circumstances referred to in section 9(7)(d) are that—E+W

(a)the requirements of section 11 have been satisfied;

(b)an occupation order or a non-molestation order is in force in favour of the applicant or a child of the family, made against the other party;

(c)the applicant has, during the period for reflection and consideration, taken such steps as are reasonably practicable to try to reach agreement about the parties’ financial arrangements;

(d)the applicant has not been able to reach agreement with the other party about those arrangements and is unlikely to be able to do so in the foreseeable future; and

(e)a delay in making the order applied for under section 3—

(i)would be significantly detrimental to the welfare of any child of the family; or

(ii)would be seriously prejudicial to the applicant.

Court orders and agreementsE+W

5(1)Section 9 is not to be read as requiring any order or agreement to have been carried into effect at the time when the court is considering whether arrangements for the future have been made by the parties.E+W

(2)The fact that an appeal is pending against an order of the kind mentioned in section 9(2)(a) is to be disregarded.

Financial arrangementsE+W

6In section 9 and this Schedule “financial arrangements” has the same meaning as in section 34(2) of the 1973 Act.E+W

Negotiated agreementsE+W

7In section 9(2)(b) “negotiated agreement” means a written agreement between the parties as to future arrangements—E+W

(a)which has been reached as the result of mediation or any other form of negotiation involving a third party; and

(b)which satisfies such requirements as may be imposed by rules of court.

DeclarationsE+W

8(1)Any declaration of a kind mentioned in section 9—E+W

(a)must be in a prescribed form;

(b)must, in prescribed cases, be accompanied by such documents as may be prescribed; and

(c)must, in prescribed cases, satisfy such other requirements as may be prescribed.

(2)The validity of a divorce order or separation order made by reference to such a declaration is not to be affected by any inaccuracy in the declaration.

InterpretationE+W

9In this Schedule—E+W

“financial relief” has such meaning as may be prescribed; and

“prescribed” means prescribed by rules of court.

Section 15.

SCHEDULE 2E+W Financial provision

Prospective

IntroductoryE+W

1Part II of the 1973 Act (financial provision and property adjustment orders) is amended as follows.E+W

(a)an order that a party must make in favour of another person such periodical payments, for such term, as may be specified (a “periodical payments order”);

(b)an order that a party must, to the satisfaction of the court, secure in favour of another person such periodical payments, for such term, as may be specified (a “secured periodical payments order”);

(c)an order that a party must make a payment in favour of another person of such lump sum or sums as may be specified (an “order for the payment of a lump sum”).

(2)For the purposes of this Act, a property adjustment order is—

(a)an order that a party must transfer such of his or her property as may be specified in favour of the other party or a child of the family;

(b)an order that a settlement of such property of a party as may be specified must be made, to the satisfaction of the court, for the benefit of the other party and of the children of the family, or either or any of them;

(c)an order varying, for the benefit of the parties and of the children of the family, or either or any of them, any marriage settlement [F162, other than one in the form of a pension arrangement (within the meaning of section 25D below)];

(d)an order extinguishing or reducing the interest of either of the parties under any marriage settlement [F162, other than one in the form of a pension arrangement (within the meaning of section 25D below)].

[F163(3)For the purposes of this Act, a pension sharing order is an order which—

(a)provides that one party’s—

(i)shareable rights under a specified pension arrangement, or

(ii)shareable state scheme rights,

be subject to pension sharing for the benefit of the other party, and

(b)specifies the percentage value to be transferred.]

F164(4)Subject to section 40 below, where an order of the court under this Part of this Act requires a party to make or secure a payment in favour of another person or to transfer property in favour of any person, that payment must be made or secured or that property transferred—

(a)if that other person is the other party to the marriage, to that other party; and

(b)if that other person is a child of the family, according to the terms of the order—

(i)to the child; or

(ii)to such other person as may be specified, for the benefit of that child.

F164(5)References in this section to the property of a party are references to any property to which that party is entitled either in possession or in reversion.

F164(6)Any power of the court under this Part of this Act to make such an order as is mentioned in subsection (2)(b) to (d) above is exercisable even though there are no children of the family.

(a)the reference to shareable rights under a pension arrangement is to rights in relation to which pension sharing is available under Chapter I of Part IV of the Welfare Reform and Pensions Act 1999, or under corresponding Northern Ireland legislation, and

(b)the reference to shareable state scheme rights is to rights in relation to which pension sharing is available under Chapter II of Part IV of the Welfare Reform and Pensions Act 1999, or under corresponding Northern Ireland legislation.]

“marriage settlement” means an ante-nuptial or post-nuptial settlement made on the parties (including one made by will or codicil);

“party” means a party to a marriage; and

“specified” means specified in the order in question.”]

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Financial provision: divorce and separationE+W

“22A Financial provision orders: divorce and separation.

(1)On an application made under this section, the court may at the appropriate time make one or more financial provision orders in favour of—

(a)a party to the marriage to which the application relates; or

(b)any of the children of the family.

(2)The “appropriate time” is any time—

(a)after a statement of marital breakdown has been received by the court and before any application for a divorce order or for a separation order is made to the court by reference to that statement;

(b)when an application for a divorce order or separation order has been made under section 3 of the 1996 Act and has not been withdrawn;

(c)when an application for a divorce order has been made under section 4 of the 1996 Act and has not been withdrawn;

(d)after a divorce order has been made;

(e)when a separation order is in force.

(3)The court may make—

(a)a combined order against the parties on one occasion,

(b)separate orders on different occasions,

(c)different orders in favour of different children,

(d)different orders from time to time in favour of the same child,

but may not make, in favour of the same party, more than one periodical payments order, or more than one order for payment of a lump sum, in relation to any marital proceedings, whether in the course of the proceedings or by reference to a divorce order or separation order made in the proceedings.

(4)If it would not otherwise be in a position to make a financial provision order in favour of a party or child of the family, the court may make an interim periodical payments order, an interim order for the payment of a lump sum or a series of such orders, in favour of that party or child.

(5)Any order for the payment of a lump sum made under this section may—

(a)provide for the payment of the lump sum by instalments of such amounts as may be specified in the order; and

(b)require the payment of the instalments to be secured to the satisfaction of the court.

(6)Nothing in subsection (5) above affects—

(a)the power of the court under this section to make an order for the payment of a lump sum; or

(b)the provisions of this Part of this Act as to the beginning of the term specified in any periodical payments order or secured periodical payments order.

(7)Subsection (8) below applies where the court—

(a)makes an order under this section ( “the main order”) for the payment of a lump sum; and

(b)directs—

(i)that payment of that sum, or any part of it, is to be deferred; or

(ii)that that sum, or any part of it, is to be paid by instalments.

(8)In such a case, the court may, on or at any time after making the main order, make an order ( “the order for interest”) for the amount deferred, or the instalments, to carry interest (at such rate as may be specified in the order for interest)—

(a)from such date, not earlier than the date of the main order, as may be so specified;

(b)until the date when the payment is due.

(9)This section is to be read subject to any restrictions imposed by this Act and to section 19 of the 1996 Act.

22B Restrictions affecting section 22A.

(1)No financial provision order, other than an interim order, may be made under section 22A above so as to take effect before the making of a divorce order or separation order in relation to the marriage, unless the court is satisfied—

(a)that the circumstances of the case are exceptional; and

(b)that it would be just and reasonable for the order to be so made.

(2)Except in the case of an interim periodical payments order, the court may not make a financial provision order under section 22A above at any time while the period for reflection and consideration is interrupted under section 7(8) of the 1996 Act.

(3)No financial provision order may be made under section 22A above by reference to the making of a statement of marital breakdown if, by virtue of section 5(3) or 7(9) of the 1996 Act (lapse of divorce or separation process), it has ceased to be possible—

(a)for an application to be made by reference to that statement; or

(b)for an order to be made on such an application.

(4)No financial provision order may be made under section 22A after a divorce order has been made, or while a separation order is in force, except—

(a)in response to an application made before the divorce order or separation order was made; or

(b)on a subsequent application made with the leave of the court.

(5)In this section, “period for reflection and consideration” means the period fixed by section 7 of the 1996 Act.”

Prospective

Financial provision: nullity of marriageE+W

4For section 23 substitute—E+W

“23 Financial provision orders: nullity.

(1)On or after granting a decree of nullity of marriage (whether before or after the decree is made absolute), the court may, on an application made under this section, make one or more financial provision orders in favour of—

(a)either party to the marriage; or

(b)any child of the family.

(2)Before granting a decree in any proceedings for nullity of marriage, the court may make against either or each of the parties to the marriage—

(a)an interim periodical payments order, an interim order for the payment of a lump sum, or a series of such orders, in favour of the other party;

(b)an interim periodical payments order, an interim order for the payment of a lump sum, a series of such orders or any one or more other financial provision orders in favour of each child of the family.

(3)Where any such proceedings are dismissed, the court may (either immediately or within a reasonable period after the dismissal) make any one or more financial provision orders in favour of each child of the family.

(4)An order under this section that a party to a marriage must pay a lump sum to the other party may be made for the purpose of enabling that other party to meet any liabilities or expenses reasonably incurred by him or her in maintaining himself or herself or any child of the family before making an application for an order under this section in his or her favour.

(5)An order under this section for the payment of a lump sum to or for the benefit of a child of the family may be made for the purpose of enabling any liabilities or expenses reasonably incurred by or for the benefit of that child before the making of an application for an order under this section in his favour to be met.

(6)An order under this section for the payment of a lump sum may—

(a)provide for the payment of that sum by instalments of such amount as may be specified in the order; and

(b)require the payment of the instalments to be secured to the satisfaction of the court.

(7)Nothing in subsections (4) to (6) above affects—

(a)the power under subsection (1) above to make an order for the payment of a lump sum; or

(b)the provisions of this Act as to the beginning of the term specified in any periodical payments order or secured periodical payments order.

(8)The powers of the court under this section to make one or more financial provision orders are exercisable against each party to the marriage by the making of—

(a)a combined order on one occasion, or

(b)separate orders on different occasions,

but the court may not make more than one periodical payments order, or more than one order for payment of a lump sum, in favour of the same party.

(9)The powers of the court under this section so far as they consist in power to make one or more orders in favour of the children of the family—

(a)may be exercised differently in favour of different children; and

(b)except in the case of the power conferred by subsection (3) above, may be exercised from time to time in favour of the same child; and

(c)in the case of the power conferred by that subsection, if it is exercised by the making of a financial provision order of any kind in favour of a child, shall include power to make, from time to time, further financial provision orders of that or any other kind in favour of that child.

(10)Where an order is made under subsection (1) above in favour of a party to the marriage on or after the granting of a decree of nullity of marriage, neither the order nor any settlement made in pursuance of the order takes effect unless the decree has been made absolute.

(11)Subsection (10) above does not affect the power to give a direction under section 30 below for the settlement of an instrument by conveyancing counsel.

(12)Where the court—

(a)makes an order under this section ( “the main order”) for the payment of a lump sum; and

(b)directs—

(i)that payment of that sum or any part of it is to be deferred; or

(ii)that that sum or any part of it is to be paid by instalments,

it may, on or at any time after making the main order, make an order ( “the order for interest”) for the amount deferred or the instalments to carry interest at such rate as may be specified by the order for interest from such date, not earlier than the date of the main order, as may be so specified, until the date when payment of it is due.

(13)This section is to be read subject to any restrictions imposed by this Act.”

Prospective

Property adjustment orders: divorce and separationE+W

5Insert, before section 24—E+W

“23A Property adjustment orders: divorce and separation.

(1)On an application made under this section, the court may, at any time mentioned in section 22A(2) above, make one or more property adjustment orders.

(2)If the court makes, in favour of the same party to the marriage, more than one property adjustment order in relation to any marital proceedings, whether in the course of the proceedings or by reference to a divorce order or separation order made in the proceedings, each order must fall within a different paragraph of section 21(2) above.

(3)The court shall exercise its powers under this section, so far as is practicable, by making on one occasion all such provision as can be made by way of one or more property adjustment orders in relation to the marriage as it thinks fit.

(4)Subsection (3) above does not affect section 31 or 31A below.

(5)This section is to be read subject to any restrictions imposed by this Act and to section 19 of the 1996 Act.

23B Restrictions affecting section 23A.

(1)No property adjustment order may be made under section 23A above so as to take effect before the making of a divorce order or separation order in relation to the marriage unless the court is satisfied—

(a)that the circumstances of the case are exceptional; and

(b)that it would be just and reasonable for the order to be so made.

(2)The court may not make a property adjustment order under section 23A above at any time while the period for reflection and consideration is interrupted under section 7(8) of the 1996 Act.

(3)No property adjustment order may be made under section 23A above by virtue of the making of a statement of marital breakdown if, by virtue of section 5(3) or 7(5) of the 1996 Act (lapse of divorce or separation process), it has ceased to be possible—

(a)for an application to be made by reference to that statement; or

(b)for an order to be made on such an application.

(4)No property adjustment order may be made under section 23A above after a divorce order has been made, or while a separation order is in force, except—

(a)in response to an application made before the divorce order or separation order was made; or

(b)on a subsequent application made with the leave of the court.

(5)In this section, “period for reflection and consideration” means the period fixed by section 7 of the 1996 Act.”

Prospective

Property adjustment orders: nullityE+W

6For section 24, substitute—E+W

“24 Property adjustment orders: nullity of marriage.

(1)On or after granting a decree of nullity of marriage (whether before or after the decree is made absolute), the court may, on an application made under this section, make one or more property adjustment orders in relation to the marriage.

(2)The court shall exercise its powers under this section, so far as is practicable, by making on one occasion all such provision as can be made by way of one or more property adjustment orders in relation to the marriage as it thinks fit.

(3)Subsection (2) above does not affect section 31 or 31A below.

(4)Where a property adjustment order is made under this section on or after the granting of a decree of nullity of marriage, neither the order nor any settlement made in pursuance of the order is to take effect unless the decree has been made absolute.

(5)That does not affect the power to give a direction under section 30 below for the settlement of an instrument by conveyancing counsel.

(6)This section is to be read subject to any restrictions imposed by this Act.”

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

24B“ “Pension sharing orders: divorce.

(1)On an application made under this section, the court may at the appropriate time make one or more pension sharing orders.

(2)The “appropriate time” is any time—

(a)after a statement of marital breakdown has been received by the court and before any application for a divorce order or for a separation order is made to the court by reference to that statement;

(b)when an application for a divorce order has been made under section 3 of the 1996 Act and has not been withdrawn;

(c)when an application for a divorce order has been made under section 4 of the 1996 Act and has not been withdrawn;

(d)after a divorce order has been made.

(3)The court shall exercise its powers under this section, so far as is practicable, by making on one occasion all such provision as can be made by way of one or more pension sharing orders in relation to the marriage as it thinks fit.

(4)This section is to be read subject to any restrictions imposed by this Act and to section 19 of the 1996 Act.

24BA Restrictions affecting section 24B.

(1)No pension sharing order may be made under section 24B above so as to take effect before the making of a divorce order in relation to the marriage.

(2)The court may not make a pension sharing order under section 24B above at any time while the period for reflection and consideration is interrupted under section 7(8) of the 1996 Act.

(3)No pension sharing order may be made under section 24B above by virtue of a statement of marital breakdown if, by virtue of section 5(3) or 7(9) of the 1996 Act (lapse of divorce process), it has ceased to be possible—

(a)for an application to be made by reference to that statement, or

(b)for an order to be made on such an application.

(4)No pension sharing order may be made under section 24B above after a divorce order has been made, except—

(a)in response to an application made before the divorce order was made, or

(b)on a subsequent application made with the leave of the court.

(5)A pension sharing order under section 24B above may not be made in relation to a pension arrangement which—

(a)is the subject of a pension sharing order in relation to the marriage, or

(b)has been the subject of pension sharing between the parties to the marriage.

(6)A pension sharing order under section 24B above may not be made in relation to shareable state scheme rights if—

(a)such rights are the subject of a pension sharing order in relation to the marriage, or

(b)such rights have been the subject of pension sharing between the parties to the marriage.

(7)A pension sharing order under section 24B above may not be made in relation to the rights of a person under a pension arrangement if there is in force a requirement imposed by virtue of section 25B or 25C below which relates to benefits or future benefits to which he is entitled under the pension arrangement.

(8)In this section, “period for reflection and consideration” means the period fixed by section 7 of the 1996 Act.

24BB Pension sharing orders: nullity of marriage.

(1)On or after granting a decree of nullity of marriage (whether before or after the decree is made absolute), the court may, on an application made under this section, make one or more pension sharing orders in relation to the marriage.

(2)The court shall exercise its powers under this section, so far as is practicable, by making on one occasion all such provision as can be made by way of one or more pension sharing orders in relation to the marriage as it thinks fit.

(3)Where a pension sharing order is made under this section on or after the granting of a decree of nullity of marriage, the order is not to take effect unless the decree has been made absolute.

(4)This section is to be read subject to any restrictions imposed by this Act.

24BC Restrictions affecting section 24BB.

(1)A pension sharing order under section 24BB above may not be made in relation to a pension arrangement which—

(a)is the subject of a pension sharing order in relation to the marriage, or

(b)has been the subject of pension sharing between the parties to the marriage.

(2)A pension sharing order under section 24BB above may not be made in relation to shareable state scheme rights if—

(a)such rights are the subject of a pension sharing order in relation to the marriage, or

(b)such rights have been the subject of pension sharing between the parties to the marriage.

(3)A pension sharing order under section 24BB above may not be made in relation to the rights of a person under a pension arrangement if there is in force a requirement imposed by virtue of section 25B or 25C below which relates to benefits or future benefits to which he is entitled under the pension arrangement. ””]

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Period of secured and unsecured payments ordersE+W

7(1)In section 28(1) (duration of a continuing financial provision order in favour of a party to a marriage), for paragraphs (a) and (b) substitute—E+W

“(a)a term specified in the order which is to begin before the making of the order shall begin no earlier—

(i)where the order is made by virtue of section 22A(2)(a) or (b) above, unless sub-paragraph (ii) below applies, than the beginning of the day on which the statement of marital breakdown in question was received by the court;

(ii)where the order is made by virtue of section 22A(2)(b) above and the application for the divorce order was made following cancellation of an order preventing divorce under section 10 of the 1996 Act, than the date of the making of that application;

(iii)where the order is made by virtue of section 22A(2)(c) above, than the date of the making of the application for the divorce order; or

(iv)in any other case, than the date of the making of the application on which the order is made;

(b)a term specified in a periodical payments order or secured periodical payments order shall be so defined as not to extend beyond—

(i)in the case of a periodical payments order, the death of the party by whom the payments are to be made; or

(ii)in either case, the death of the party in whose favour the order was made or the remarriage of that party following the making of a divorce order or decree of nullity.”

(2)In section 29 (duration of continuing financial provision order in favour of a child of the family) insert after subsection (1)—

“(1A)The term specified in a periodical payments order or secured periodical payments order made in favour of a child shall be such term as the court thinks fit.

(1B)If that term is to begin before the making of the order, it may do so no earlier than—

(a)in the case of an order made by virtue of section 22A(2)(a) or (b) above, except where paragraph (b) below applies, the beginning of the day on which the statement of marital breakdown in question was received by the court;

(b)in the case of an order made by virtue of section 22A(2)(b) above where the application for the divorce order was made following cancellation of an order preventing divorce under section 10 of the 1996 Act, the date of the making of that application;

(c)in the case of an order made by virtue of section 22A(2)(c) above, the date of the making of the application for the divorce order; or

(d)in any other case, the date of the making of the application on which the order is made.”

Prospective

Variations etc. following reconciliationsE+W

8Insert after section 31—E+W

“31A Variation etc. following reconciliations.

(1)Where, at a time before the making of a divorce order—

(a)an order ( “a paragraph (a) order”) for the payment of a lump sum has been made under section 22A above in favour of a party,

(b)such an order has been made in favour of a child of the family but the payment has not yet been made, or

(c)a property adjustment order ( “a paragraph (c) order”) has been made under section 23A above,

the court may, on an application made jointly by the parties to the marriage, vary or discharge the order.

(2)Where the court varies or discharges a paragraph (a) order, it may order the repayment of an amount equal to the whole or any part of the lump sum.

(3)Where the court varies or discharges a paragraph (c) order, it may (if the order has taken effect)—

(a)order any person to whom property was transferred in pursuance of the paragraph (c) order to transfer—

(i)the whole or any part of that property, or

(ii)the whole or any part of any property appearing to the court to represent that property,

in favour of a party to the marriage or a child of the family; or

(b)vary any settlement to which the order relates in favour of any person or extinguish or reduce any person’s interest under that settlement.

(4)Where the court acts under subsection (3) it may make such supplemental provision (including a further property adjustment order or an order for the payment of a lump sum) as it thinks appropriate in consequence of any transfer, variation, extinguishment or reduction to be made under paragraph (a) or (b) of that subsection.

(5)Sections 24A and 30 above apply for the purposes of this section as they apply where the court makes a property adjustment order under section 23A or 24 above.

(6)The court shall not make an order under subsection (2), (3) or (4) above unless it appears to it that there has been a reconciliation between the parties to the marriage.

(7)The court shall also not make an order under subsection (3) or (4) above unless it appears to it that the order will not prejudice the interests of—

(a)any child of the family; or

(b)any person who has acquired any right or interest in consequence of the paragraph (c) order and is not a party to the marriage or a child of the family.”

Prospective

Section 19(5).

SCHEDULE 3E+W Stay of proceedings

IntroductoryE+W

1Schedule 1 to the M47Domicile and Matrimonial Proceedings Act 1973 (which relates to the staying of matrimonial proceedings) is amended as follows.E+W

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(c)proceedings for a declaration as to the validity of a marriage of the petitioner; or

(d)proceedings for a declaration as to the subsistence of such a marriage.

(2) “Marital proceedings” has the meaning given by section 20 of the Family Law Act 1996.

(3) “Divorce proceedings” means marital proceedings that are divorce proceedings by virtue of that section.”

4Insert, after paragraph 4—E+W

“4A(1) “Statement of marital breakdown” has the same meaning as in the Family Law Act 1996.

(2) “Relevant statement” in relation to any marital proceedings, means—

(a)the statement of marital breakdown with which the proceedings commenced; or

(b)if the proceedings are for the conversion of a separation order into a divorce order under section 4 of the Family Law Act 1996, the statement of marital breakdown by reference to which the separation order was made.”

Duty to furnish particulars of concurrent proceedingsE+W

5For paragraph 7 substitute—E+W

“7(1)While marital proceedings are pending in the court with respect to a marriage, this paragraph applies—

(a)to the party or parties to the marriage who made the relevant statement; and

(b)in prescribed circumstances where the statement was made by only one party, to the other party.

(2)While matrimonial proceedings of any other kind are pending in the court with respect to a marriage and the trial or first trial in those proceedings has not begun, this paragraph applies—

(a)to the petitioner; and

(b)if the respondent has included a prayer for relief in his answer, to the respondent.

(3)A person to whom this paragraph applies must give prescribed information about any proceedings which—

(a)he knows to be continuing in another jurisdiction; and

(b)are in respect of the marriage or capable of affecting its validity or subsistence.

(4)The information must be given in such manner, to such persons and on such occasions as may be prescribed.”

Obligatory stays in divorce casesE+W

6(1)Paragraph 8 is amended as follows.E+W

(2)For the words before paragraph (a) of sub-paragraph (1) substitute—

“(1)This paragraph applies where divorce proceedings are continuing in the court with respect to a marriage.

(2)Where it appears to the court, on the application of a party to the marriage—”.

(a)no application for a divorce order in relation to the marriage may be made either by reference to the relevant statement or by reference to any subsequent statement of marital breakdown; and

(b)if such an application has been made, no divorce order may be made on that application.”

Discretionary staysE+W

7(1)Paragraph 9 is amended as follows.E+W

(2)For sub-paragraph (1), substitute—

“(1)Sub-paragraph (1A) below applies where—

(a)marital proceedings are continuing in the court; or

(b)matrimonial proceedings of any other kind are continuing in the court, if the trial or first trial in the proceedings has not begun.

(1A)The court may make an order staying the proceedings if it appears to the court—

(a)that proceedings in respect of the marriage, or capable of affecting its validity or subsistence, are continuing in another jurisdiction; and

(b)that the balance of fairness (including convenience) as between the parties to the marriage is such that it is appropriate for proceedings in that jurisdiction to be disposed of before further steps are taken in the proceedings to which the order relates.”

(3)For sub-paragraph (3) substitute—

“(3)Where an application for a stay is pending under paragraph 8 above, the court shall not make an order under sub-paragraph (1A) staying marital proceedings in relation to the marriage.”

(4)In sub-paragraph 4, after “pending in the court,” insert “ other than marital proceedings, ”.

(5)After sub-paragraph (4), insert—

“(5)The effect of an order under sub-paragraph (1A) for a stay of marital proceedings is that, while it is in force—

(a)no application for a divorce order or separation order in relation to the marriage may be made either by reference to the relevant statement or by reference to any subsequent statement of marital breakdown; and

(b)if such an application has been made, no divorce order or separation order shall be made on that application.”

Discharge of ordersE+W

8In paragraph 10, for sub-paragraph (2), substitute—E+W

“(1A)Where the court discharges an order staying any proceedings, it may direct that the whole or a specified part of any period while the order has been in force—

(a)is not to count towards any period specified in section 5(3) or 7(9) of the Family Law Act 1996; or

(b)is to count towards any such period only for specified purposes.

(2)Where the court discharges an order under paragraph 8 above, it shall not again make such an order in relation to the marriage except in a case where the obligation to do so arises under that paragraph following receipt by the court of a statement of marital breakdown after the discharge of the order.”

Ancillary mattersE+W

9(1)Paragraph 11 is amended as follows.E+W

(2)For sub-paragraph (1) substitute—

“(1)Sub-paragraphs (2) and (3) below apply where a stay of marital proceedings or proceedings for nullity of marriage—

(a)has been imposed by reference to proceedings in a related jurisdiction for divorce, separation or nullity of marriage, and

(b)is in force.

(1A)In this paragraph—

“lump sum order”, in relation to a stay, means an order—

(a)

under section 22A or 23, 31 or 31A of the M48Matrimonial Causes Act 1973 which is an order for the payment of a lump sum for the purposes of Part II of that Act, or

(b)

made in any equivalent circumstances under Schedule 1 to the M49Children Act 1989 and of a kind mentioned in paragraph 1(2)(a) or (b) of that Schedule,

so far as it satisfies the condition mentioned in sub-paragraph (1C) below;

“the other proceedings”, in relation to a stay, means the proceedings in another jurisdiction by reference to which the stay was imposed;

“relevant order”, in relation to a stay, means—

(a)

any financial provision order (including an interim order), other than a lump sum order;

(b)

any order made in equivalent circumstances under Schedule 1 to the M50Children Act 1989 and of a kind mentioned in paragraph 1(2)(a) or (b) of that Schedule;

(c)

any section 8 order under the Act of 1989; and

(d)

except for the purposes of sub-paragraph (3) below, any order restraining a person from removing a child out of England and Wales or out of the care of another person,

so far as it satisfies the condition mentioned in sub-paragraph (1C) below.

(1C)The condition is that the order is, or (apart from this paragraph) could be, made in connection with the proceedings to which the stay applies.”

(3)In sub-paragraph (2)—

(a)for “any proceedings are stayed” substitute “ this paragraph applies in relation to a stay ”;

(b)in paragraph (a), and in the first place in paragraph (c), omit “in connection with the stayed proceedings”; and

(c)in paragraphs (b) and (c), for “made in connection with the stayed proceedings” substitute “ already made ”.

(4)In sub-paragraph (3)—

(a)for “any proceedings are stayed” substitute “ this paragraph applies in relation to a stay ”;

(b)in paragraph (a), for “made in connection with the stayed proceedings” substitute “ already made ”;

(5)In sub-paragraph (3A), for the words before “any order made” substitute—

“Where a secured periodical payments order within the meaning of the M51Matrimonial Causes Act 1973—

(a)has been made under section 22A(1)(b) or 23(1)(b) or (2)(b) of that Act, but

(b)ceases to have effect by virtue of sub-paragraph (2) or (3) above,”.

(6)For sub-paragraph (4), substitute—

“(4)Nothing in sub-paragraphs (2) and (3) above affects any relevant order or lump sum order or any power to make such an order in so far as—

(a)where the stay applies to matrimonial proceedings other than marital proceedings, the order has been made or the power may be exercised following the receipt by the court of a statement of marital breakdown;

(b)where the stay is of marital proceedings, the order has been made or the power may be exercised in matrimonial proceedings of any other kind; or

(c)where the stay is of divorce proceedings only, the order has been made or the power may be exercised—

(i)in matrimonial proceedings which are not marital proceedings, or

(ii)in marital proceedings in which an application has been made for a separation order.”

(7)In sub-paragraph (5)(c), for the words from “in connection” onwards substitute “ where a stay no longer applies ”.

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SCHEDULE 4E+W Provisions supplementary to sections 30 and 31

InterpretationE+W

[F1701In this Schedule “legal representative” means a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes a reserved instrument activity (within the meaning of that Act).]E+W

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Restriction on registration where spouse entitled to more than one chargeE+W

2Where one spouse [F171or civil partner] is entitled by virtue of section 31 to a registrable charge in respect of each of two or more dwelling-houses, only one of the charges to which that spouse [F171or civil partner] is so entitled shall be registered under section 31(10) or under section 2 of the M52Land Charges Act 1972 at any one time, and if any of those charges is registered under either of those provisions the Chief Land Registrar, on being satisfied that any other of them is so registered, shall cancel the registration of the charge first registered.E+W

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Contract for sale of house affected by registered charge to include term requiring cancellation of registration before completionE+W

3(1)Where one spouse [F172or civil partner] is entitled by virtue of section 31 to a charge on an estate in a dwelling-house and the charge is registered under section 31(10) or section 2 of the Land Charges Act 1972, it shall be a term of any contract for the sale of that estate whereby the vendor agrees to give vacant possession of the dwelling-house on completion of the contract that the vendor will before such completion procure the cancellation of the registration of the charge at his expense.E+W

(2)Sub-paragraph (1) shall not apply to any such contract made by a vendor who is entitled to sell the estate in the dwelling-house freed from any such charge.

(3)If, on the completion of such a contract as is referred to in sub-paragraph (1), there is delivered to the purchaser or his [F173legal representative] an application by the spouse [F174or civil partner] entitled to the charge for the cancellation of the registration of that charge, the term of the contract for which sub-paragraph (1) provides shall be deemed to have been performed.

(4)This paragraph applies only if and so far as a contrary intention is not expressed in the contract.

(5)This paragraph shall apply to a contract for exchange as it applies to a contract for sale.

(6)This paragraph shall, with the necessary modifications, apply to a contract for the grant of a lease or underlease of a dwelling-house as it applies to a contract for the sale of an estate in a dwelling-house.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

4(1)Where a [F176spouse’s or civil partner’s home rights] are a charge on an estate in the dwelling-house and the charge is registered under section 31(10) or under section 2 of the M53Land Charges Act 1972, the Chief Land Registrar shall, subject to sub-paragraph (2), cancel the registration of the charge if he is satisfied—E+W

(i)by the production of a certificate or other sufficient evidence, that either spouse is dead,

(ii)by the production of an official copy of a decree or order of a court, that the marriage has been terminated otherwise than by death, or

(iii)by the production of an order of the court, that the spouse’s home rights constituting the charge have been terminated by the order, and

(b)in the case of a civil partnership—

(i)by the production of a certificate or other sufficient evidence, that either civil partner is dead,

(ii)by the production of an official copy of an order or decree of a court, that the civil partnership has been terminated otherwise than by death, or

(iii)by the production of an order of the court, that the civil partner’s home rights constituting the charge have been terminated by the order.]

(2)Where—

(a)the marriage [F178or civil partnership] in question has been terminated by the death of the spouse [F179or civil partner] entitled to an estate in the dwelling-house or otherwise than by death, and

(b)an order affecting the charge of the spouse [F180or civil partner] not so entitled had been made under section 33(5),

then if, after the making of the order, registration of the charge was renewed or the charge registered in pursuance of sub-paragraph (3), the Chief Land Registrar shall not cancel the registration of the charge in accordance with sub-paragraph (1) unless he is also satisfied that the order has ceased to have effect.

(3)Where such an order has been made, then, for the purposes of sub-paragraph (2), the spouse [F181or civil partner] entitled to the charge affected by the order may—

(a)if before the date of the order the charge was registered under section 31(10) or under section 2 of the Land Charges Act 1972, renew the registration of the charge, and

(b)if before the said date the charge was not so registered, register the charge under section 31(10) or under section 2 of the Land Charges Act 1972.

(4)Renewal of the registration of a charge in pursuance of sub-paragraph (3) shall be effected in such manner as may be prescribed, and an application for such renewal or for registration of a charge in pursuance of that sub-paragraph shall contain such particulars of any order affecting the charge made under section 33(5) as may be prescribed.

(5)The renewal in pursuance of sub-paragraph (3) of the registration of a charge shall not affect the priority of the charge.

(6)In this paragraph “prescribed” means prescribed by rules made under section 16 of the Land Charges Act 1972 or [F182by land registration rules under the Land Registration Act 2002], as the circumstances of the case require.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

5(1)A [F184spouse or civil partner entitled to home rights] may by a release in writing release those rights or release them as respects part only of the dwelling-house affected by them.E+W

(2)Where a contract is made for the sale of an estate or interest in a dwelling-house, or for the grant of a lease or underlease of a dwelling-house, being (in either case) a dwelling-house affected by a charge registered under section 31(10) or under section 2 of the Land Charges Act 1972, then, without prejudice to sub-paragraph (1), the [F185home rights] constituting the charge shall be deemed to have been released on the happening of whichever of the following events first occurs—

(a)the delivery to the purchaser or lessee, as the case may be, or his [F186legal representative] on completion of the contract of an application by the spouse [F187or civil partner] entitled to the charge for the cancellation of the registration of the charge; or

(b)the lodging of such an application at Her Majesty’s Land Registry.

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Postponement of priority of chargeE+W

6A spouse [F188or civil partner] entitled by virtue of section 31 to a charge on an estate or interest may agree in writing that any other charge on, or interest in, that estate or interest shall rank in priority to the charge to which that spouse [F188or civil partner] is so entitled.E+W

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SCHEDULE 5E+W Powers of High Court and county court to remand

Annotations:

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InterpretationE+W

1In this Schedule “the court” means the High Court or a county court and includes—E+W

(a)in relation to the High Court, a judge of that court, and

(b)in relation to a county court, a judge or district judge of that court.

Remand in custody or on bailE+W

2(1)Where a court has power to remand a person under section 47, the court may—E+W

(a)remand him in custody, that is to say, commit him to custody to be brought before the court at the end of the period of remand or at such earlier time as the court may require, or

(b)remand him on bail—

(i)by taking from him a recognizance (with or without sureties) conditioned as provided in sub-paragraph (3), or

(ii)by fixing the amount of the recognizances with a view to their being taken subsequently in accordance with paragraph 4 and in the meantime committing the person to custody in accordance with paragraph (a).

(2)Where a person is brought before the court after remand, the court may further remand him.

(3)Where a person is remanded on bail under sub-paragraph (1), the court may direct that his recognizance be conditioned for his appearance—

(a)before that court at the end of the period of remand, or

(b)at every time and place to which during the course of the proceedings the hearing may from time to time be adjourned.

(4)Where a recognizance is conditioned for a person’s appearance in accordance with sub-paragraph (1)(b), the fixing of any time for him next to appear shall be deemed to be a remand; but nothing in this sub-paragraph or sub-paragraph (3) shall deprive the court of power at any subsequent hearing to remand him afresh.

(5)Subject to paragraph 3, the court shall not remand a person under this paragraph for a period exceeding 8 clear days, except that—

(a)if the court remands him on bail, it may remand him for a longer period if he and the other party consent, and

(b)if the court adjourns a case under section 48(1), the court may remand him for the period of the adjournment.

(6)Where the court has power under this paragraph to remand a person in custody it may, if the remand is for a period not exceeding 3 clear days, commit him to the custody of a constable.

Further remandE+W

3(1)If the court is satisfied that any person who has been remanded under paragraph 2 is unable by reason of illness or accident to appear or be brought before the court at the expiration of the period for which he was remanded, the court may, in his absence, remand him for a further time; and paragraph 2(5) shall not apply.E+W

(2)Notwithstanding anything in paragraph 2(1), the power of the court under sub-paragraph (1) to remand a person on bail for a further time may be exercised by enlarging his recognizance and those of any sureties for him to a later time.

(3)Where a person remanded on bail under paragraph 2 is bound to appear before the court at any time and the court has no power to remand him under sub-paragraph (1), the court may in his absence enlarge his recognizance and those of any sureties for him to a later time; and the enlargement of his recognizance shall be deemed to be a further remand.

Postponement of taking of recognizanceE+W

4Where under paragraph 2(1)(b)(ii) the court fixes the amount in which the principal and his sureties, if any, are to be bound, the recognizance may thereafter be taken by such person as may be prescribed by rules of court, and the same consequences shall follow as if it had been entered into before the court.E+W

Section 52.

SCHEDULE 6E+W Amendments of Children Act 1989

“38A Power to include exclusion requirement in interim care order.

(1)Where—

(a)on being satisfied that there are reasonable grounds for believing that the circumstances with respect to a child are as mentioned in section 31(2)(a) and (b)(i), the court makes an interim care order with respect to a child, and

(b)the conditions mentioned in subsection (2) are satisfied,

the court may include an exclusion requirement in the interim care order.

(2)The conditions are—

(a)that there is reasonable cause to believe that, if a person ( “the relevant person”) is excluded from a dwelling-house in which the child lives, the child will cease to suffer, or cease to be likely to suffer, significant harm, and

(b)that another person living in the dwelling-house (whether a parent of the child or some other person)—

(i)is able and willing to give to the child the care which it would be reasonable to expect a parent to give him, and

(ii)consents to the inclusion of the exclusion requirement.

(3)For the purposes of this section an exclusion requirement is any one or more of the following—

(a)a provision requiring the relevant person to leave a dwelling-house in which he is living with the child,

(b)a provision prohibiting the relevant person from entering a dwelling-house in which the child lives, and

(c)a provision excluding the relevant person from a defined area in which a dwelling-house in which the child lives is situated.

(4)The court may provide that the exclusion requirement is to have effect for a shorter period than the other provisions of the interim care order.

(5)Where the court makes an interim care order containing an exclusion requirement, the court may attach a power of arrest to the exclusion requirement.

(6)Where the court attaches a power of arrest to an exclusion requirement of an interim care order, it may provide that the power of arrest is to have effect for a shorter period than the exclusion requirement.

(7)Any period specified for the purposes of subsection (4) or (6) may be extended by the court (on one or more occasions) on an application to vary or discharge the interim care order.

(8)Where a power of arrest is attached to an exclusion requirement of an interim care order by virtue of subsection (5), a constable may arrest without warrant any person whom he has reasonable cause to believe to be in breach of the requirement.

(9)Sections 47(7), (11) and (12) and 48 of, and Schedule 5 to, the Family Law Act 1996 shall have effect in relation to a person arrested under subsection (8) of this section as they have effect in relation to a person arrested under section 47(6) of that Act.

(10)If, while an interim care order containing an exclusion requirement is in force, the local authority have removed the child from the dwelling-house from which the relevant person is excluded to other accommodation for a continuous period of more than 24 hours, the interim care order shall cease to have effect in so far as it imposes the exclusion requirement.

38B Undertakings relating to interim care orders.

(1)In any case where the court has power to include an exclusion requirement in an interim care order, the court may accept an undertaking from the relevant person.

(2)No power of arrest may be attached to any undertaking given under subsection (1).

(3)An undertaking given to a court under subsection (1)—

(a)shall be enforceable as if it were an order of the court, and

(b)shall cease to have effect if, while it is in force, the local authority have removed the child from the dwelling-house from which the relevant person is excluded to other accommodation for a continuous period of more than 24 hours.

(4)This section has effect without prejudice to the powers of the High Court and county court apart from this section.

(5)In this section “exclusion requirement” and “relevant person” have the same meaning as in section 38A.”

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

“(3A)On the application of a person who is not entitled to apply for the order to be discharged, but who is a person to whom an exclusion requirement contained in the order applies, an interim care order may be varied or discharged by the court in so far as it imposes the exclusion requirement.

(3B)Where a power of arrest has been attached to an exclusion requirement of an interim care order, the court may, on the application of any person entitled to apply for the discharge of the order so far as it imposes the exclusion requirement, vary or discharge the order in so far as it confers a power of arrest (whether or not any application has been made to vary or discharge any other provision of the order).”

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

“44A Power to include exclusion requirement in emergency protection order.

(1)Where—

(a)on being satisfied as mentioned in section 44(1)(a), (b) or (c), the court makes an emergency protection order with respect to a child, and

(b)the conditions mentioned in subsection (2) are satisfied,

the court may include an exclusion requirement in the emergency protection order.

(2)The conditions are—

(a)that there is reasonable cause to believe that, if a person ( “the relevant person”) is excluded from a dwelling-house in which the child lives, then—

(i)in the case of an order made on the ground mentioned in section 44(1)(a), the child will not be likely to suffer significant harm, even though the child is not removed as mentioned in section 44(1)(a)(i) or does not remain as mentioned in section 44(1)(a)(ii), or

(ii)in the case of an order made on the ground mentioned in paragraph (b) or (c) of section 44(1), the enquiries referred to in that paragraph will cease to be frustrated, and

(b)that another person living in the dwelling-house (whether a parent of the child or some other person)—

(i)is able and willing to give to the child the care which it would be reasonable to expect a parent to give him, and

(ii)consents to the inclusion of the exclusion requirement.

(3)For the purposes of this section an exclusion requirement is any one or more of the following—

(a)a provision requiring the relevant person to leave a dwelling-house in which he is living with the child,

(b)a provision prohibiting the relevant person from entering a dwelling-house in which the child lives, and

(c)a provision excluding the relevant person from a defined area in which a dwelling-house in which the child lives is situated.

(4)The court may provide that the exclusion requirement is to have effect for a shorter period than the other provisions of the order.

(5)Where the court makes an emergency protection order containing an exclusion requirement, the court may attach a power of arrest to the exclusion requirement.

(6)Where the court attaches a power of arrest to an exclusion requirement of an emergency protection order, it may provide that the power of arrest is to have effect for a shorter period than the exclusion requirement.

(7)Any period specified for the purposes of subsection (4) or (6) may be extended by the court (on one or more occasions) on an application to vary or discharge the emergency protection order.

(8)Where a power of arrest is attached to an exclusion requirement of an emergency protection order by virtue of subsection (5), a constable may arrest without warrant any person whom he has reasonable cause to believe to be in breach of the requirement.

(9)Sections 47(7), (11) and (12) and 48 of, and Schedule 5 to, the Family Law Act 1996 shall have effect in relation to a person arrested under subsection (8) of this section as they have effect in relation to a person arrested under section 47(6) of that Act.

(10)If, while an emergency protection order containing an exclusion requirement is in force, the applicant has removed the child from the dwelling-house from which the relevant person is excluded to other accommodation for a continuous period of more than 24 hours, the order shall cease to have effect in so far as it imposes the exclusion requirement.

44B Undertakings relating to emergency protection orders.

(1)In any case where the court has power to include an exclusion requirement in an emergency protection order, the court may accept an undertaking from the relevant person.

(2)No power of arrest may be attached to any undertaking given under subsection (1).

(3)An undertaking given to a court under subsection (1)—

(a)shall be enforceable as if it were an order of the court, and

(b)shall cease to have effect if, while it is in force, the applicant has removed the child from the dwelling-house from which the relevant person is excluded to other accommodation for a continuous period of more than 24 hours.

(4)This section has effect without prejudice to the powers of the High Court and county court apart from this section.

(5)In this section “exclusion requirement” and “relevant person” have the same meaning as in section 44A.”

“(8A)On the application of a person who is not entitled to apply for the order to be discharged, but who is a person to whom an exclusion requirement contained in the order applies, an emergency protection order may be varied or discharged by the court in so far as it imposes the exclusion requirement.

(8B)Where a power of arrest has been attached to an exclusion requirement of an emergency protection order, the court may, on the application of any person entitled to apply for the discharge of the order so far as it imposes the exclusion requirement, vary or discharge the order in so far as it confers a power of arrest (whether or not any application has been made to vary or discharge any other provision of the order).”

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.